The Routledge Companion to Copyright and Creativity in the 21st Century

Michelle Bogre, Nancy Wolff, Michelle Bogre, Nancy Wolff

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781317331063
• Edition: 1
• Topic: Law
• Subtopic: Copyright Law
• Index: Law

These collected chapters and interviews explore the current issues and debates about how copyright will or should adapt to meet the practices of 21st-century creators and internet users. The book begins with an overview of copyright law basics. It is organized by parts that correspond to creative genres: Literary Works, Visual Arts, Fine Art, Music, Video Games and Virtual Worlds, Fashion, and Technology. The chapters and interviews address issues such as copyright ownership in work created by Artificial Intelligence (AI), the musical remix market, whether appropriation is ever a fair use of a copyrighted work or if it is always theft, and whether internet- based platforms should do more to deter piracy of creators' works. Each part ends with an essay explaining the significance of one or two landmark or trendsetting cases to help the reader understand the practical implications of the law. Written to be accessible to both lay and legal audiences, this unique collection addresses contemporary legal issues that all creators need to understand and will be essential reading for artists, designers, and musicians as well as the lawyers who represent them.

PART I
Copyright Basics

1.1

Copyright Basics

What You Think You Know May Not Be True

This chapter is intended to be an overview of copyright law for those readers who do not have a legal background. It will provide a reference for terms used and ideas discussed in this book’s essays.

Legal Systems

Law is country-specific, so the legal principles discussed in this book apply to the United States (US). There is no worldwide intellectual property (IP) law that applies to all countries; however, many US legal principles harmonize with laws in other countries. Also, the US is a signatory on international copyright treaties that establish obligations that treaty members must adhere to and include in their national laws. The two main copyright treaties to which the US is a signatory are the Berne Convention for the Protection of Literary and Artistic Works¹ (Berne Convention) and the Universal Copyright Convention.² The US is also a member-state of the World Intellectual Property Organization (WIPO), an agency of the United Nations that serves as the global forum for IP services.

Generally speaking, there are two types of legal systems in developed countries: civil law, used in most countries around the world today (such as Europe, Russia, China, and most of Central and Latin America), and common law, used in Britain and most former British colonies, including the US (where common law applies to all states except Louisiana, which bases its state law on a civil law code, due to its French origins). In a common-law system, laws usually originate in the legislative branch, but are developed, honed, and parsed by the courts. Great weight is placed on judges’ decisions, which have the same force of law as a statute and, in fact, courts have the authority to make law where no legislative statute exists. In copyright law, for example, the fair use doctrine, which we will look at in greater detail, originated in the courts before being added to the Copyright Revision Act of 1976.

Copyright Is Federal Law

As a Federalist system, the US has both state and federal courts, with hierarchical structures for each. Because copyright law is federal law, all copyright cases are heard in federal courts. The federal court system has three main hierarchical levels: district (or trial) courts; circuit courts that hear appeals; and, finally, the Supreme Court, the highest court in the land. Federal courts are organized geographically or regionally. There are ninety-four district court jurisdictions and twelve regional circuits (including the District of Columbia), each of which has one court of appeals.

In a common-law system, interactions between court decisions, constitutional law, statutory law, and regulatory law can be complicated; however, stare decisis, the principle that similar cases should be decided according to consistent principled rules, and that similar facts should not be treated differently, lies at the heart of all common-law systems. In cases where the parties disagree on what the law is, a common-law court looks to past decisions of relevant courts. Supreme Court decisions are binding on all courts. In most jurisdictions, decisions by appellate courts are binding only on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are not binding on appellate courts. A decision by a court in a different jurisdiction is only non-binding persuasive authority. So under the doctrine of stare decisis, if a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision in the same jurisdiction. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression”), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts in that jurisdiction.

Copyright Protects Creative Expression

Copyright law is a form of protection provided for most types of creative work. It falls under the umbrella of IP law, which protects “creations” (property) of the mind. IP is rooted in the concept of real property rights. The philosophical basis for protecting private property ownership is well entrenched in Western society: Laws protect private (real) property from interference by others. For example, you can sell your property, you can loan it to someone, or you can exclude someone from using it. You can touch real property and because it is real, that is, composed of atoms, etc., it can only occupy one place at any given time. This means that possession of a physical thing is exclusive; if I have it, you do not. Private property ownership has been viewed as a foundation for an ordered economic system, and historically, as a vehicle for the accumulation of wealth. IP also has an extraordinary value. In 2017, core copyright industries added $1.3 trillion to the US economy and employed almost six million people.³

IP, by definition, is intangible. You cannot touch it. However, even though it is intangible, it is something you own, just as you own a car or a camera. It belongs to you, the creator, and you alone decide how it can be used. Because it is intangible, protecting IP is a more complex philosophical question than protecting tangible property. Should IP rights be the same as real property rights? How long should they last? Why do we protect it at all? The essays in this book explore these questions.

Copyright law is enshrined in the US Constitution, article 1, section 8, clause 8, which grants Congress the power to “. . . promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” A simple reading of this language would suggest that the framers were interested in striking a balance between protecting creative work, by giving creators an economic incentive to create, and protecting the public’s right to benefit from those creations in a reasonable time frame. The first Copyright Act, passed in 1790, protected work for only fourteen years with one fourteen-year renewal, but only if the work was published and had a proper copyright notice affixed. Unpublished works were protected only by state common law. Work that was not protected, or lost its protection, entered the public domain where it became free for use by the public. Published meant offering copies to the public, even if those copies were offered for free. The copyright law was first updated in the Copyright Act of 1909 and that Act still applies to works created before 1978. The most current law, the Copyright Revision Act of 1976 (which became effective in 1978), applies to works created after 1978. While the subsequent versions of the Copyright Act increased the length of protection for works (for example, the 1909 Act had an initial term of twenty-eight years with a renewal term of another twenty-eight years), the distinction between published and unpublished works continued until the current Act. This Act extended the term of copyright to life of the author, plus a term of years, initially fifty and now seventy, and for works owned by entities, the term was initially seventy-five years from publication, but was later increased to ninety-five years. For works made for hire (discussed below) or pseudonymous works (that is, works created under a false name), the duration runs ninety-five years from first publication or 120 years from creation (whichever is shorter). The 1976 Act still required that published work bears a copyright notice. Significantly, when the US joined the Berne Convention in March 1989, the requirement that work have a copyright notice affixed was eliminated, a formality that caused many works of authors to inadvertently fall into the public domain. To avoid the harsh impact on foreign authors, works of foreign authors regained copyright protection that was lost for failing to follow the US formalities.

To understand the impact of a long copyright duration (the US term is consistent with most treaty countries), if a creator is twenty years old when she creates something, but lives to be 100, that particular work would have copyright protection for 150 years. Because it is difficult to keep track of duration, and with works still in copyright under the 1909 Act and the current Act, a good chart to rely on is Cornell University’s public domain chart.⁴

The law initially protected only “authors” and “writings,” which then included maps and charts. The term “author” is not defined, but it has been interpreted to include only human authorship. Copyright currently covers:

• Literary works (including computer programs)
• Musical works and accompanying words
• Dramatic works and accompanying music
• Pantomimes and choreography
• Pictorial, graphic, and sculptural works
• Motion pictures and audiovisual works and sound recordings
• Architectural works

It does not cover:

• Names
• Titles
• Slogans and short phrases
• Ideas, concepts, or facts
• Themes
• Works created by the federal government
• Fashion

While trademark law may offer protection for some titles, slogans, and short phrases under specific circumstances, copyright, as a form of monopoly, does not protect things that should be available to the public. For example, copyright law does not protect ideas; it protects the “expression” of the idea the moment the idea is fixed in a tangible medium. While this is not defined in the statute, it has come to mean fixed (preserved) in any form that can be perceived (read or heard) directly or by use of a machine or device for a period of more than transitory duration. For example, a copy can be fixed even if it only occurs in a computer’s RAM for a few seconds. However, televising a live event would not be fixed unless it is simultaneously being recorded.

However, because copyright is an intangible right, it does not “attach” to the object itself. For example, if a photographer sells a print, made from a photographic negative, the purchaser only owns the print. The purchaser can display or sell the print, but does not acquire any of the exclusive rights of the photographer under copyright, so the purchaser cannot, for example, make any reproductions of the print, or use the print as the subject for a painting, without the consent of the photographer. This separation of copyright from the object is often misunderstood by both creators and the public.

The elements for copyright protection are minimal: In addition to being fixed, the work has to be original, which means that the author created it rather than found or identically copied it from another work, and it has to be creative, not utilitarian, but the bar for creativity is very low. Because the current law does not require publication or notice, all work that fits these minimal standards currently has copyright protection for the full term of copyright. This means that most creative work found on the internet has copyright protection. It is not necessary to register the work with the Copyright Office for the copyright to be valid, although there are good reasons to register works (discussed below).

Joint Copyright

If there are two or more creators, the law allows for a joint copyright, defined as a work prepared by two or more people “with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole.” Intent is the key. All creators must intend at the beginning of the project that they are collaborating as equal creators.

The problem with a joint copyright is that all parties are considered equal owners, so either party may exercise any of the copyright holder’s exclusive rights without needing the other’s permission, unless one party wants to grant an exclusive license. A joint copyright holder may only grant exclusive rights in the work to third parties if all coauthors agree. For all other rights, the joint copyright holder’s permission is not needed, and the only requirement is to share any money that might be made. This sounds good in theory, but often creators have conflicting interests. Except for true joint projects where the works cannot be separated from each other, it is often better to have a collaboration agreement where the dominant party holds the copyright and shares revenue and credit with other participants, and to seek the advice of an attorney to draft the agreement.

Work Made for Hire

The only exception to the rule that copyright belongs to the creator is when an employer-employee relationship or a work made for hire—​commonly known as work for hire—​agreement exists. Generally, the employer-employee relationship is defined by law as a relationship governed by whether the party who commissioned the work has the right to control how the work is created. Simply being hired to do a job does not necessarily make someone an employee. The law considers whether the employer takes taxes out of a paycheck, where the work is performed, and how much of the work is controlled by the employer. The more control the “employer” has over the work duties, workplace, and work hours, the more likely the arrangement will be considered to be employee-employer, in which case the employer owns the copyright, absent an agreement to the contrary. A single job would not likely create an employee-employer relationship, but someone who has an ongoing relationship in a regular workplace where all the work is done under the employer direction might be considered to be an employee, even if the employer never made a formal job offer. Work for hire is a legal fiction that allows a person, company, or organization to claim authorship of a creative work they did not create, and as the “author” they own the copyright. Work for hire occurs more frequently in today’s work environment because many contracts, even for a single job, contain a work for hire phrase or clause. Understand that if you sign a work for hire agreement, you are irrevocably transferring all of your copyrights to the commissioning party. To be valid, a work for hire agreement (outside of an employer-employment agreement) must be in writing, and must fall under nine categories of specifically commissioned works as defined in section 101 of the Act: a co...