Copyright's Highway
From the Printing Press to the Cloud, Second Edition
Paul Goldstein

BUY THIS BOOK


1

THE METAPHYSICS OF COPYRIGHT

In late spring 1990, a major American music publisher entered into battle with a popular singing group over a handful of words and a few bars of music. Twenty-five years earlier, Acuff-Rose Music, the largest country music publisher in the world, had acquired rights to the song “Oh, Pretty Woman” from its writers, the celebrated pop star Roy Orbison and William Dees. Orbison’s recording of the song was his last and biggest hit. Now, without permission from Acuff-Rose, the controversial rap group 2 Live Crew had recorded its own version of the song on its latest album, sandwiching it between two other tracks, “Me So Horny” and “My Seven Bizzos.” On June 18, 1990, Acuff-Rose filed suit in federal district court in Nashville, Tennessee for infringement of its copyright.

What is copyright? From copyright law’s beginnings more than three centuries ago, the term has meant just what it says: the right to stop others from making copies of a given work without one’s permission. The first copyright laws aimed only at exact replications of printed work. The publishers of the eighteenth-century poet James Thomson’s The Seasons regularly sued producers of unauthorized, or pirated, editions of the popular poem, since they controlled the copyright, obtained from Thomson. Starting in the mid-nineteenth century, copyright extended its reach. As the law evolved, copyright owners sued to stop the publication not only of exact knockoffs but also of imitations and adaptations: the translation into German of Harriet Beecher Stowe’s bestseller, Uncle Tom’s Cabin; a story’s dramatization for the stage; an abridgment of a twelve-volume biography of George Washington.

And a rap parody of a poignant, popular lyric? One of copyright law’s most bedeviling questions is how much one author can borrow from another before he becomes a copyright infringer. In the essay “Literary Larceny,” the English copyright scholar and barrister Augustine Birrell observed, “[that] a particular leg of mutton is mine is capable of easy proof or disproof, but how much of my book is mine is a nice question.” Getting the answer to that question right is important, because it is in the nature of creative work for one author to draw on the works of others. Marking the line of copyright infringement too short will fail to give the original author his due, but extending it too far will make it hard for other writers to earn theirs.

Did 2 Live Crew cross the line when it borrowed from Orbison and Dees? The trial court found that although the group had copied some lyrics and music from “Oh, Pretty Woman,” its rendition was very different. The song “starts out with the same lyrics as the original,” but, the court added, “it quickly degenerates into a play on words, substituting predictable lyrics with shocking ones.” Where Roy Orbison fantasizes about a beautiful woman he encounters on the street, 2 Live Crew had some very different fantasies in mind: a “big hairy woman,” a “bald-headed woman,” and a “two-timin’” woman.

The lawyers for 2 Live Crew understood that traditional copyright doctrine would judge their clients not by how much they had added to the Orbison-Dees original but by how much they had taken from it. Indeed, they effectively conceded that 2 Live Crew had infringed the copyright but for a single fact: the group’s song was not an imitation but a parody, and parodies should be allowed to borrow more liberally than outright imitations. After all, how could a parodist make his point without conjuring up the original, and how could one conjure up the original without copying some of its content?

On January 14, 1991, the trial court handed down its decision. It agreed with 2 Live Crew’s argument that parodies deserve elbow room, not only because the art of parody requires some degree of copying but also because it serves a larger cultural purpose--deflating cultural icons. The veteran folk singer Oscar Brand testified for 2 Live Crew that African-American music commonly substitutes new words to “make fun of the ‘white-bread’ originals and the establishment.” The court agreed: “2 Live Crew is an antiestablishment rap group and this song derisively demonstrates how bland and banal the Orbison song seems to them.”

The dispute between Acuff-Rose and 2 Live Crew was just one of hundreds of copyright cases filed in 1990. Copyright cases run the gamut of popular culture, from songs, novels, and motion pictures to news stories, advertisements, photographs, and architecture. Copyright embraces more than art. Some cases involve instructional materials, scientific and scholarly texts, cookbooks—even computer programs. Some turn on broad principles like those invoked by 2 Live Crew. Other cases call for the interpretation of intricate statutory rules. A great many turn on the answer to two questions: Has the defendant copied? Has he copied too much? All copyright cases have one fact in common: by telling authors how much they may lawfully borrow from earlier works and how much they must create on their own, copyright law indelibly colors the works it encompasses, whether news stories, stock market reports, scholarly articles, motion pictures, magazine pieces, or popular records.

Front-page copyright lawsuits like the Pretty Woman case have a clear effect on authors and their works. But that effect is usually observed far from the courtroom, in the corporate legal departments and private law offices to which executives in publishing companies, record companies, motion picture studios, and advertising agencies regularly turn for advice on how much can be taken from a copyrighted work without crossing the law’s No Trespassing line. Even insurance companies, which issue “errors and omissions” policies to protect publishers and film studios from the effects of adverse copyright decisions, have a say in what gets published and what does not.

All these decisions, whether made in the courts, legislatures, or private law offices, have a single result: when copyright gives control to one person, it extracts some measure of freedom to imitate from everyone else. What justifies this legally enforced exchange? One justification that artists and writers frequently advance is the protection of their privacy—the legally enforced seclusion they need to protect their early drafts, and even their correspondence, from public view. In 1986, the reclusive writer J. D. Salinger obtained a copyright injunction to stop a biographer from publishing quotations from his private letters now housed in research libraries. Authors also look to copyright to preserve the integrity of their works. In 1976, the Monty Python comedy troupe went to court and used its copyrights to stop the ABC television network from broadcasting three of its programs in a version that had been truncated to accommodate commercial advertisements and network censors.

Copyright is also and often about money. It can cost a lot to conceive, execute, produce, and market a creative work. The right to stop the copying of a work implies the power to allow it—at a price—and prospective copyright owners usually rely on the hope of eventual copyright revenues to repay their initial investment. A songwriter assigns the copyright in a song to a music publisher in return for the promise of royalties paid on each copy sold or performed. The music publisher sells a film company the right to use the song in a movie sound track, again in return for a share of the anticipated profits. Only the marketplace will determine whether a work has commercial value. But if the work does have commercial value, copyright aims at least in part to put some of that value in the songwriter’s pocket.

Copyright concerns copies, not originals, and the money involved is usually a small price charged for each of the many copies made for people who want to share in a work, rather than a large price that an individual will pay to possess the original of a work that is one-of-a-kind. When an object’s value lies in its singularity and authenticity—a painting, for example, or an original manuscript in the author’s hand—copyright has little effect on its value in the marketplace. But a novel can command a half-million-dollar advance against earnings for its author because his publisher hopes that royalties from sales to hundreds of thousands of readers will at least equal that amount. The reason a painting by Jasper Johns will sell for millions is not that there is a market for copies but, on the contrary, that there is only one original. Even so, copyright can serve an artist’s interest by enabling him to stop the making or selling of copies—posters, calendars—that might impair his work’s singularity.

Copyright owners today wield their economic control with the deftness of a surgeon’s scalpel. A publisher charges more for the initial hardcover edition of a novel than for the softcover edition that follows months or years later, not so much because the hardcover costs more to produce (though it does) as because the publisher knows that some readers will pay a premium to read a new book as soon as it is published, while other readers will trade immediate gratification for the lower price of a cheaper edition issued later. By adjusting its prices to these differing tastes, the publisher can earn a profit from each for both itself and the author. Without copyright, this sort of price discrimination would not be possible.

Lawyers commonly classify copyright as an intellectual property law. And, indeed, copyright is related to other, more mundane forms of property. An author’s right to ward off unauthorized copying of his work is much like a homeowner’s right to keep trespassers off his land. But the “intellectual” part describes a distinctive attribute: copyright is not about protecting rights in a tangible object such as a piece of land or a leg of mutton. Copyright protects products of the human mind, the thoughts and expressions that one day may be found on the pages of a book and the next in a song or motion picture. It is hard to draw boundaries around such fugitive “properties.” Justice Joseph Story observed this peculiarity more than a century and a half ago: “Copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”

A first step in understanding copyright law is to separate it from other intellectual property doctrines. In 1970, Alan Latman, a lawyer whose career would soon immerse him in a pivotal chapter in the history of American copyright law, told a group of intellectual property specialists that “most people do not understand the differences between patents, trademarks, and copyrights. This applies to clients, other lawyers, and at times even judges. When I tell a general practitioner that I am a copyright lawyer, he immediately corrects me: ‘You mean patents!’ He then says: ‘Well, anyway, as a patent lawyer, you can copyright a name for me, can’t you?’” (The inside joke was that trademark law, not copyright law, protects names.)

Patent law’s domain is invention and technology, the work that goes into creating new products, whether tractors, pharmaceuticals, or electric can openers. The U.S. Patent Act gives an inventor, or the company to which he has assigned his rights, the right to stop others from manufacturing, selling, importing, or using an invention without the patent holder’s permission. It originates in the same constitutional source as the Copyright Act—the clause in the U.S. Constitution empowering Congress to promote invention and authorship by granting inventors and authors “exclusive rights” in their “discoveries” and “writings.” One reason it is so easy to confuse patents with copyrights is that Congress has read the term “writings” broadly, passing copyright laws that protect not only poems, novels, and plays but also such utilitarian objects as telephone directories, bookkeeping forms, and computer programs.

If copyright is the law of authorship and patent the law of invention, trademark is the law of consumer marketing. Courts protect the terms Coca-Cola, McDonald’s, and Apple against imitation or unauthorized use, not because they represent creative or inventive leaps of the mind, but because they signify a single source of a product and a certain consistent level of quality to consumers. Trademark law aims to ensure that, whether in Portland, Maine, or San Diego, California, a traveler coming upon a fast-food restaurant with the familiar golden arches will get the same food offered in all other McDonald’s restaurants. Just as copyright overlaps patents, it also overlaps trademarks. When the Walt Disney Company gets a court order stopping the distribution of unauthorized stickers featuring Mickey Mouse, it is not only because Mickey Mouse is a trademark, indicating Disney as its source, but also because Disney owns the copyright in the Mickey Mouse image.

Congress and the federal courts are not the only guarantors of intellectual property protection in the United States. It is state, not federal, law that protects trade secrets—the closeted technologies and formulas such as the legendary secret formula for Coca-Cola syrup—against theft by industrial spies and disaffected employees. Unfair competition laws enforced by state courts parallel federal trademark law, but without its formalities. If the Coca-Cola Company had failed to register its Coca-Cola mark in the Patent and Trademark Office in Washington, it could still fall back on state unfair competition law to protect it against anyone who passes off his soft drinks as Coca-Cola or sells them under a counterfeit Coca-Cola label.

None of these state or federal intellectual property categories is entirely rigid. Sustaining all of them, including copyright, is the intuition that people should be able to hold on to the value of what they create, to reap where they have sown. When an intellectual property doctrine’s traditional four corners will not readily accommodate this intuition, courts have pushed the doctrine’s edges to give creators what they perceive to be their due. No one offered a T-shirt emblazoned with the famous Coca-Cola logo would think he was buying a soft drink. But the value—courts call it “good will”—that has accumulated around the Coca-Cola Company’s mark over the years produces a predictable result: courts will prohibit the sale of the T-shirt as well as of any other marked product made without the company’s consent.

Sometimes courts cannot stretch an existing intellectual property doctrine to protect new sources of commercial value. When in the 1960s famous athletes began lending their names to endorse sports equipment and rock stars began putting their faces on posters, these new celebrities wanted to be sure the right to use pictures of themselves was their right. Courts tried to fit this new claim—that unauthorized use of celebrities’ images infringed their rights—into traditional unfair competition and trademark law; but when these doctrines proved inadequate, the courts and later legislatures, developed a new doctrine, the right of publicity, to embody this new idea about the commercial value of one’s very own self. When a producer of portable toilets took the famous opening line from the Tonight Show when Johnny Carson was its host, and proclaimed a new slogan for its product—“Here’s Johnny” (the “World’s Foremost Commodian”)—a federal appeals court ruled that sales of the product violated Carson’s right of publicity.

NOTES

Most of the cases referred to in the text are cited by their location in the West Publishing Company’s National Reporter System, available in county law libraries as well as in law school libraries and many law offices. Federal district court opinions are cited to the Federal Supplement (F. Supp.), and circuit court opinions to the Federal Reporter (Fed., F.2d or F.3d, depending on the date of decision). Supreme Court opinions are, where possible, cited to the official United States Reports (U.S.). References to federal legislation are to the United States Code (U.S.C.).

James Thomson’s The Seasons figured in two landmark eighteenth-century English decisions, Millar v. Taylor and Donaldson v. Becket; they are discussed in Chapter 2. The case involving Uncle Tom’s Cabin is Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853), and the case involving the Washington biography is Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).“Literary Larceny” appears in Augustine Birrell, The Law and History of Copyright in Books 167 (1899).

The district court decision in Acuff-Rose Music Inc. v. Campbell is reported at 754 F. Supp. 1150 (M.D. Tenn. 1991); Oscar Brand’s statement is quoted in the circuit court opinion at 972 F.2d 1429, 1433 (6th Cir. 1992).

The Salinger lawsuit, Salinger v. Random House, Inc., is reported at 811 F.2d 90 (2d Cir. 1987), and the Monty Python suit, Gilliam v. American Broadcasting Cos., at 538 F.2d 14 (2d Cir. 1976). Justice Story’s reflections on “the metaphysics of the law” appear in Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass. 1841).

Alan Latman’s observations on the confusion between copyright, patent, and trademark were made in the course of an August 1, 1970, speech to the American Bar Association Section on Patents, Trademarks, and Copyrights in St. Louis, Missouri; it is reprinted in 60 Trademark Reporter 506 (1970). The U.S. patent law is codified in 35 U.S.C. §§ 1 et seq. The constitutional source for the copyright and patent laws is U.S. Constitution, Art. 1, § 8 cl. 8. Federal trademark law is codified in 15 U.S.C. §§ 1051 et seq.; its constitutional source is the Commerce Clause, U.S. Constitution, Art. 1, § 8 cl. 3. For an example of a Disney lawsuit based on overlapping claims of copyright and trademark in character depictions—characters appearing in Disney’s motion picture Pinocchio—see Walt Disney Productions v. Filmation Assocs., 628 F. Supp. 871 (C.D. Cal. 1986).

The Johnny Carson case, Carson v. Here’s Johnny Portable Toilets, Inc., is reported at 698 F.2d 831 (6th Cir. 1983), and the Associated Press case, International News Service v. Associated Press, at 248 U.S. 215 (1918). The copyright term extension case is Eldred v. Ashcroft, 123 S. Ct. 769 (2003). The role of African countries in the folklore protection movement is described in Marie Niedzielska, “The Intellectual Property Aspects of Folklore Protection,” Copyright, November 1980, p. 339.