If you read the internet, copyright, and especially long copyright terms are an unfathomable evil. In their eyes copyright “hinders learning, destroys our cultural legacy, hurts innovation and the general public, but most importantly it impedes filmmakers, artists, DJ’s and other content creators that need to be able to build upon the work of others to create new content”. 1 There are lots of dire pronouncements, with lots of invective and insults hurled, particularly at the Walt Disney Company (quote “responsible for one of the greatest thefts in world history”) 2. Yet as typical with such cyberspace broadsides, there is very little explanation of precisely how this suppression of innovation occurs.
That’s because copyright doesn’t suppress either creativity or innovation. And here’s why:
The Doctrine of Independent Creation
One of the problems, both with commentators and the general public, is that they merge the protections afforded patents with those afforded copyrights.
If I have a patent, my protection against similar inventions is nearly universal. “[P]atent grants its holder the exclusive right to make use, and sell the invention, regardless of how another comes by the knowledge. The patent grant is nearly absolute within the boundaries of the patent’s claims, barring even those who independently develop the invention from practicing its art. 3 Indeed, until very recently, a patent owner could prevent the manufacture and trade of a similar device, even if the other party invented it first. 4
This is not the case with copyrights. All that is required to obtain a copyright is that the work be original. This “means only that the work was independently created by the author, and that it possesses at least some minimal degree of creativity”. 5 So, two people can write the same song, and as long as they don’t copy from each other, each is entitled to a copyright on it. Neither are infringements of each other, even if they are close to being identical. 6 It doesn’t even matter who wrote it first. 7 Can’t happen? Sure it can. The Bee Gees and a Chicago composer named Ronald Selle both wrote a song now famous as “How Deep Is Your Love”, separated by thousands of miles. One was not an infringement of the other.
This is why music companies and motion picture companies routinely reject unsolicited material. It’s not that they don’t need new songs and new stories to tell. (lord knows Hollywood could use some). It’s that many songs and many stories are indeed similar to each other in one way or another. If the creative content company never saw or heard your work, then they never had a chance to copy it, and therefore there is no infringement.
So how does my copyright have a negative impact or your creativity? It doesn’t. As long as you did not copy from me, it’s yours as well. May the best man win. And if you did copy from me, you’re not being very creative, are you?
What People think Copyright Protects is Far Greater than What it Actually Protects
This distinction can be summed up like this: Copyright does not protect WHAT you said. It protects HOW you said it. So, in furtherance of this principle the copyright act is very explicit that copyright protection does not exist in “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 8 Similarly, facts 9, history 10 and even theories about historical events, 11 have no copyright protection.
In 2012, the Republican Study Committee release a policy brief entitled “Three Myths About Copyright and Where to Start to Fix it” 12. To be fair, this policy paper was officially withdrawn less than 24 hours after it was initially released. However, it also demonstrates the depth of misunderstanding of what copyright does and does not protect.
The report claimed under the headnote Hampered scientific inquiry “Scientific papers from the early portion of the 20th century are still under copyright. . . This is illogical, as the purpose of most scientific papers is to further intellectual inquiry, and the goal of most authors of scientific papers is to advance their field and to be cited in other publications… For these reasons, keeping their work in what are effectively locked vaults defeats the purpose of much of their work.” 13
Politely, this is nonsense. Any scientist, reading any scientific journal is more than free to utilize, either in practice or for any further research any procedure, process, system, method, concept, principle or discovery contained in such an article. “[F]acts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas,” says the Supreme Court of the Unites States. 14
On the flip side of the coin, a lot of creative people as well have a very exaggerated view of what is protected and what is not protected. The recent case of the “Dancing Banana Lady” being a prime example. 15 A work is infringing only if the conflicting works are a) copied from each other (see above) b) copying copyrightable elements (see above) and c) substantially similar to each other.
I can think of a cartoon duck, with an inability to control his temper and who speaks with a speech impediment. Is this Daffy Duck? Is this Donald Duck? Could be either, couldn’t it? Doesn’t matter ultimately because we can all agree that while they share similarities, they are not substantially similar to each other. Does the existence of a copyright on Daffy Duck and Donald Duck prevent you from creating your own cartoon duck? Of course not.
Lately I have been rewatching episodes of the 1960’s television series “The Man From U.N.C.L.E.. They are clearly inspired by the series of James Bond films, which were enormously popular during that time (and still are, I suppose). There are lots of examples of similarities: a) The handsome secret agent who is a ladykiller b) a secret criminal organization who serves as his primary adversary c) the grumpy but kindly older man who send our hero on his adventures d) the frequent uses of gadgets and technology to aid the hero on his mission. Again these are mere ideas, and are unprotectable , even if they were copied directly from the James Bond films or books 16. They share similarities, but overall, the works are not substantially similar to each other, as the plot, setting and themes are on the whole, very different.
As the last point on this topic, similarities that naturally flow from the treatment of a common idea or common subject matter, whether it be a secret agent, a friendly alien 17, a zoo full of live dinosaurs 18, or an embattled police precinct house 19 are not infringements of each other.
The Author Should Have Right to Control the Uses of Their Work
During my 26 years of private practice, I had lots of opportunities to license musical compositions to rap artists. A while ago, a request came in to use a clients’ song that had been very commercially successful. My standard procedure was to request an MP3 of the song along with a lyric sheet. Upon receiving these items, the request for the use immediately left a sour taste in everyone’s mouth. The title of the song had the word “f**k” in it. Along with that, the body of the song repeated the word f**k many times along with other obscenities and overall, the rap version had an ugly, misogynistic theme.
I sent that material to my client. He found the song offensive and refused to license his song to be included in the new rap song. The rapper and his label released the song anyway. As we pondered our options regarding a possible infringement suit, one thing became clear: the single was flop, or in the words of the music business a “stiff”. It never cracked the Billboard Hot 100.
Based upon the lack of significant sales, (which would have an impact on the level of damages we could request) and the fact that our lawsuit would only give free publicity to something that was already a commercial failure, the client decided not to sue, and to just let the new rap song die a well deserved death.
This underscores a significant point. One of the exclusive rights of a copyright holder is the right to control “derivative works”. In other words the right to modify or change the work, including transferring it into a new medium 20. There have been complaints regarding how copyright is stifling the industry that produces mix-tapes and remixes 21, amid calls for some sort of compulsory license for remixes 22. The proponents of this legislation scoff at complaints of the creators of musical works 23. As noted above the concerns of offensive remixes or re-use is not just theoretical. As the author I should have the right to say “I’m not going to be associated with this stuff”. Otherwise, what does the “exclusive rights” guaranteed by Article 1 Section 8 of our Constitution mean?
Creative Commons Could Not Exist Without Copyright
Anyone can choose the level of copyright enforcement that they deem prudent or advisable. Some can choose not to enforce their copyright at all. This is fine and laudable. But this really should be the choice of the author as to what level of protection will be demanded. The Creative Commons license is the perfect example of this. You can choose various levels of rights reserved, or close to none at all. However, the ability to make this choice stick, in the legal sense, is wholly dependent upon the fact that you have a copyright in the first place. If you have no copyright,( for example if your work is in the public domain) you have no ability to demand any restrictions of any type on your works further use or distribution by anyone else. The choice over who, and to what extent, and under what restrictions, another can make copies of your work should belong to the author.
In sum, the protection afforded by copyright is not nearly as broad as people generally assume. One can copy facts, theories, history and ideas from other works, whether protected by copyright or in the public domain. I fail to see how your inability to make a Mickey Mouse cartoon impinges on your ability to make cartoons about a friendly, good natured mouse. Or how the world is suddenly made poorer by the fact that only Warner Bros. can make movies about Harry Potter.
There is wealth of material that can be copied from expressive works, whether protected by copyright or in the public domain. What is not permitted is, as the Supreme Court has so eloquently stated , are instances where the copier merely “uses [the material] to get attention or avoid the drudgery in working up something fresh…” 24
- Unconstitutionally Long Copyright Terms Stifle Content Creation, Just Ask Disney ↩
- 50 Disney Movies Based on the Public Domain ↩
- Copyright in the Digital Era: Building Evidence for Policy, The National Academies Press, Washington, D.C. at Appendix B, page 71., emphasis added. The full document can be read here. ↩
- See The America Invents Act (2011) 35 U.S.C. 273. Still, the prior inventor is required to make “commercial use” at least one year before the other files for patent or when the claimed invention was disclosed to the public. ↩
- Feist Publications Inc. v Rural Telephone Service Co. 499 U.S.340 at 345, Supreme Court of the United States (1991) ↩
- Selle v. Gibb, 741 F.2d 896, Seventh Circuit Court of Appeals 1984 “Proof of copying is crucial to any claim of copyright infringement because no matter how similar the two works may be (even to the point of identity), if the defendant did not copy the accused work, there is no infringement.” ↩
- Id. ↩
- 17 U.S.C. 102(b) ↩
- See Feist, cited a endnote 6 above. ‘[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking…. [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas. ↩
- Alexander v. Haley 460 F. Supp. 40 United States District Court for the Southern District of New York 1978.” Many of the claimed similarities are based on matters of historical or contemporary fact. No claim of copyright protection can arise from the fact that plaintiff has written about such historical and factual items, even if we were to assume that [defendant] was alerted to the facts in question by reading [plaintiff’s book]. ↩
- Hoehling v.Universal, 618 F.2d 972 Second Circuit Court of Appeals 1980:” In the instant case, the hypothesis that Eric Spehl destroyed the Hindenburg is based entirely on the interpretation of historical facts… [s]uch an historical interpretation, whether or not it originated with [plaintiff], is not protected by his copyright and can be freely used by subsequent authors. ↩
- Download the PDF ↩
- Id. at page 7. Emphasis in original ↩
- See endnote 10. ↩
- Conrad v. AM Community Credit Union, WL 1408635 Seventh Circuit Court of Appeals 2014. ↩
- In fact it was Ian Fleming, the creator of James Bond, who suggested the name of “Napoleon Solo” to the producers of “The Man From U.N.C.L.E.” ↩
- Litchfield v. Spielberg, 736 F.2d 1352 Ninth District Court of Appeals 1984 ↩
- Williams v. Crichton 84 F.3d 581 Second Circuit Court of Apeals 1996:” While both the Dinosaur World books and the Jurassic Park works share a setting of a dinosaur zoo or adventure park, with electrified fences, automated tours, dinosaur nurseries, and uniformed workers, these settings are classic scenes a faire that flow from the uncopyrightable concept of a dinosaur zoo.” ↩
- Walker v. Time-Life Films 784 F.2d 44 Second Circuit Court of Appeals 1986: “ Elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx. These similarities therefore are unprotectible as “scenes a faire,” that is, scenes that necessarily result from the choice of a setting or situation. Neither does copyright protection extend to copyright or “stock” themes commonly linked to a particular genre. Foot chases and the morale problems of policemen, not to mention the familiar figure of the Irish cop, are venerable and often-recurring themes of police fiction. As such, they are not copyrightable except to the extent they are given unique—and therefore protectible—expression in an original creation.” ↩
- 17 USC 106(2). ↩
- See endnote 12 at page 4. ↩
- Download the PDF, See also Proposal for Compulsory Remix License Has Foes In Steven Tyler and Attorney Dina LaPolt ↩
- Steven Tyler, Don Henley, and Others Join Forces to Fight Compulsory License Remixes ↩
- Acuff-Rose v. Campbell, 114 S.Ct. 1164 Supreme Court of the United States 1994 at 1172 ↩