Saturday, October 6, 2012

Copyright: Week 6 - Boundary Problems

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October 2 – Boundary Problems I: Introduction & Useful Articles (Casebook pp. 191-213)
October 4 – Boundary Problems II: Computer Programs (Casebook pp. 215-241)
Make-up Class: October 4 - Boundary Problems III: Architectural Works & Characters (Casebook pp. 246-253; 255-262)

Long-story-short, I was at a Q&A session with a NH Supreme Court Justice during the make-up class and thus missed the part about architectural works and characters.

Before either classes on October 4, my gut told me to more formally discuss my proposal that perhaps software should be patented, but not copyrighted. Before you say "that is crazy," I know. I have a theory that basically anything that is going to work must be a little bit crazy because if it wasn't crazy someone would have already done it. Clearly this theory only goes but so far. Some things are, of course, ok to do more than once.

Anyway, the copyrightability of software actually came up in class, but for a variety of reasons a choose not to pursue the discussion there. Regardless, this is a blog about music. As I mentioned in my last post, patents and copyright brush up against each other in more places that copyright but Brian isn't taking a patent course, so that would be unfair to his critique/rebuttal. Fittingly enough, today in my patent course, we had a music-related "patent of the day."  We also were directed to this song (which is sorta) about patent law.

With patents disregarded, what boundary problems come up in music? According to our book, none directly. Our book divides things into "Useful Articles with Pictorial, Graphic, or Sculptural Aspects," "Computer Software," "Architectural Works," "Characters" and "Databases". You probably gathered most of those categories looking at the assigned readings. It's too bad that we are not covering databases in class, because with projects like and Pandora, databases certainly touch on the modern musical landscape. I wanted to focus attention on characters though.

THESIS FOR REBUTTAL/CRITIQUE: The copyrightability of characters advantages incumbents at the expense of fans and remix culture.

Let me first say that I don't know that this is necessarily about corporations versus independent artists, though I do think there is a certain thread of that. J.K. Rowling hadn't published a book before the start of her Harry Potter series. I don't know how big her publisher (Bloomsbury) was when they accepted her book, but it had only been around since 1986, so I'm guessing it wasn't as big as Random House (and still isn't by an order of magnitude [admittdely I didn't do the £ to € conversion with the figures Wikipedia gave me]). What would have happened though, if the first Harry Potter book would have been a flop? Would the Harry Potter character have the same copyright protection?

Perhaps the real question is, can a literary character get copyright without a corresponding movie/TV character? The cases from our book include the characters James Bond, Razor Ramon, and various characters from The Wizard of Oz and Gone With The Wind.

A quote from Gaiman v McFarlane, 360 F.3d 644, 660-661 (7th Cir. 2004) is telling:

The reason is the difference between literary and graphic expression. The description of a character in prose leaves much to the imagination, even when the description is detailed-as in Dashiell Hammett's description of Sam Spade's physical appearance in the first paragraph of The Maltese Falcon. “Samuel Spade's jaw was long and bony, his chin a jutting v under the more flexible v of his mouth. His nostrils curved back to make another, smaller, v. His yellow-grey eyes were horizontal. The v motif was picked up again by thickish brows rising outward from twin creases above a hooked nose, and his pale brown hair grew down-from high flat temples-in a point on his forehead. He looked rather pleasantly like a blond satan.” Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like.

In the Creative Commons realm, think about the BY-NC-SA "rock Opera" Space Crackers by Clawjob. In the story the protagonist (Greg) is "chasing" his love interest, Madeline. Could Warner Bros. turn Space Crackers into a movie without the consent of the guys from Clawjob (now of Hexmap)? It seems certainly not. Could they lift the characters for Space Crackers II or for a prequel? Again, I would think not. Sequels and Prequels are classic derivative works. However, could Star Trek have an episode where a space cadet named Madeline is sent off into space and her co-student Greg follows her. Could they name their bad guys "Dooks of Doom"? I guess like many things in the depends. Certainly characters with many appearances would seem to have stronger protection through stronger character development. James Bond and Harry Potter are clearly examples of this. Characters from Gone With The Wind and The Wizard of Oz are more troubling though. I've never seen Wicked, so maybe I'd see more character development there.

Ultimately, music is firmly in copyright-land and boundary problems don't pose much of a threat of losing control of a work. Music videos or accompanying stage performance (of which I have never seen Clawjob) could lead to stronger character development in musical dramas and thus lead to stronger protection. If you want to take a character from another's work and use it in your work, it is best to consult a lawyer.

Other Tidbits

I have to say I have not listened to TWIL 181 after mentioning it last week. While on TWIL 182 both co-hosts Evan and Denise say they enjoyed 181, I found the conflict frustrating. I guess I feel like there is enough conflict in the world without listening to it on a podcast. What's weird is that I often disagree violently with people on the Federalist Society podcasts. I don't know if it is just because I am extra passionate about copyright issues or if I just see TWIL as a safe place. 

Talk Show Redux

I had thought we might talk about some of the TWIL 182 on the talk show Tom and I recorded last night with Craig Maloney of the OpenMetalcast (which will be released next week). As it turns out, we did end up talking about the public domain, fair use and state copyright, which was not something I figured we would talk about. I encourage people to listen to that show when it is released and in the meantime you can read this overview of state IP laws I wrote back in May. As the semester goes on we'll certainly talk more about fair use, so stay tuned if the show with Craig leaves you wanting more!