Monday, November 5, 2012

Copyright: Week 10 - Derivative Works vs. Substantial Similarity

This is not legal advice. Leave audio feedback at (512) 686-6329.

October 30 – Copyright Infringement IV: the Right to Prepare Derivative Works (Casebook pp. 365-390)
November 1 – Copyright Infringement V: the Public Performance & Public Display Rights (Casebook pp. 411-431)

Here again we have an issue directly related to a common issue in the Creative Commons world: derivative works. The derivative works question is almost entirely the same question as the copyrightability question. There is one difference. To infringe the derivative works right (or violate the -ND provision), the derivative work does not need to be fixed. A play based on Star Wars or another Disney property that is never recorded would not be copyrightable (at least not at the federal level) but could nevertheless infringe the derivative works right.

That, however, is not the issue on which I want to focus.

THESIS FOR REBUTTAL: The substantial similarity doctrine is a mess and should be replaced with a derivative works analysis.

In part because the substantial similarity doctrine is such a mess I am not going to be able to give the topic thorough analysis this week. The mess of substantial similarity is, of course, also one of the reasons why last week I proposed a unitary copyright court. The topics I touch upon today cover at least ~170 pages in our text book. If this is a topic that interests you, please let us know so we can focus on it again later this week when we'll be covering moral rights and some specific types of liability. With mashups and YouTube, it will be plenty easy to work the derivative works discussion in at a later time.

Additionally, for this post I've brought back something I was doing this summer with a "Resources" section at the end of the post. I've also begun building up the resources sections for the DMCA and Fair Use posts which are coming up the next three weeks because I feel those posts will also be sufficiently complex to not allow for a thorough analysis without additional reading.

With that massive disclaimer out of the way...

In Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008), the court essentially found that a dictionary was not a copyrightable work because it was not sufficiently original. This, of course, flies in the face of the cases surrounding the Webster's dictionary, which was copyrighted in 1847. Nonetheless, the court found infringement. Huh? There was, of course, direct copying in that case but apparently dictionaries and novels are "substantially similar".

Even scarier, there exists a doctrine of "subconscious copying" from Three Boys Music Corp. v. Michael Bolton. This is particularly disturbing for our purposes here because this is a case that deals with music. By denying cert, SCOTUS has condoned such a doctrine.

Aside from the infringement implication, why is this important? Copyright is a bundle of the six rights. If you get a license for a derivative work, you might not be in the clear because you would still need a reproduction right under the "this is not actually a derivative work" doctrine. This does not even get into the issue in music of mechanical licenses, which unfortunately is not an issue I'll be able to address until next semester.

A Note on -ND Licenses Specifically

Remember that if you release under a -ND Creative Commons license, you are telling the world that you do not want translations of your work. If your work is not political, journalistic or educational, perhaps you don't care about such a limitation. Remember though that if you use a BY-NC-SA license (or even a BY license) the translator must attribute you as the original author. This, of course, serves to help promote your original work. Some people are concerned that a translation could give different meaning to your words. If this is the case, you would still likely have a defamation claim against the translator. You do not need copyright or a copyright license to defend against such misappropriation. Of course, in other countries this would fall under their conception of moral rights, a topic Brian and I will discuss this coming week in class.

Please be aware that even if an artist has released under -ND, you can always talk to the artist about your proposed adaptation and the artist can grant you a separate license. Unfortunately, an individual that chooses the -ND license "reintroduces the cost and complexity that standard licensing is supposed to avoid."


The derivative work right is not all we covered this week and while that's the area I'm proposing for Brian's rebuttal, I thought I should mention a bit about the public performance right as well.

In this section, we get one 3rd Circuit opinion, but otherwise it's the 2nd, 7th, 9th triumvirate again. Has no one in Texas, Boston, Atlanta, Miami, etc ever been accused of infringing copyright? It seems a bit bizarre and spending time between the 1st and 4th Circuits, I gotta say I find it pretty irritating.

The 3rd Circuit case is Columbia Pictures Indus. v. Redd Horne, Inc. 749 F.2d 154 (1984) and it seems like a load of garbage to me. This is a public performance case and I want to focus on derivative works, but since I made a big deal about the triumvirate, I figured I should at least point people toward the 3rd Circuit once.

Since, as you can probably tell, I am mildly obsessed with jurisdictional issues as they relate to copyright, I thought I might delve into this a bit more. According to UCLA, there is but one music case that has gone to the 4th Circuit. Additionally, there has been only one in the 1st Circuit. The 6th Circuit, which includes Detroit and Nashville, has more cases, coming in at 5 cases. Again, these are music cases, not total copyright cases. Those numbers include only the US Court of Appeals. The district of N.H. has had zero reported cases and no Michigan court has had any reported cases. It's also worth noting that while we talk about Golan v. Holder in terms of music, UCLA lists only three SCOTUS cases involving music:
White-Smith Music v. Apollo Company
Campbell v. Acuff-Rose
Fantasy v. Fogerty

White-Smith is interesting because it was an unanimous decision, but two years later Congress overruled it with the 1909 Copyright Act (Congress can generally overrule SCOTUS unless the matter is constitutional).

Another important point about the public performance right is that it is riddled with exceptions. Technically speaking, we haven't gotten to the exceptions in class, but with the heavy topics of moral rights and the DMCA coming up next week, I thought it important to go ahead and at least mention the existence of the exceptions here.


The Five Exclusive Rights and Moral Rights from Life of a Law Student
Creative Commons FAQ on Derivative Works
About the CC Suite.
Music Copyright Cases
Copyright Community (the question to which I link goes unanswered which is not a strong indication that it is a useful resource, but if people are not getting the answers here that they need, it might be a good place to ask additional questions)
LegalZoom on derivative works