A THEORY OF COPYRIGHT PART 1

The objects of our creative efforts extend to as far as we dare to venture. Our imagination serves as the boundary, otherwise no bounds exist in the realm of the mind—except perhaps at those folds where we may be gripped by fear. Seneca says, “Nothing is terrible in things except fear itself”. We should remember that the mediums through which we express our soul are not to be feared, but sanctified. Some ideas may be dangerous, as they might be for those who live in the dangerous corners of the world. However, most forms of expression are politically benign. After all we mostly express ourselves simply to get from one end of the day to the other; sometimes verbally, but also in other ways. 

Someone preparing a meal experiments with new tastes, new aromas or new presentations. They give meaning to the concept expression. We write a letter drawing upon experience and language to console a friend in a time of personal loss. We listen, and advise a child or a parent in a way that gets to the heart of matters, and gets them to see the problem. We involve ourselves in local government or our church and seek out solutions to a problem that touches our neighbors.  Problem solving in general need not follow old recipes, but always has the potential for novelty, where the old solutions do not yield the requisite outcomes. In this practice of expressing ourselves, we acquire spiritual riches and come closer to finding meaning.

Patent and copyright law may protect the manner in which we chose to express our creative efforts and our deepest sentiments. But, protection must always remain subsidiary to the preeminent creative act, without which we would lose all meaningful expression of our humanity. This admonition does not depreciate the importance of legal protections it merely serves to put it into its proper context.

Many of our ideas and feelings are conveyed in the form of language of one kind or another. We may put pen to paper and write a poem or short story. Others of us may use the language of music to play an instrument or sing and explore new and different renditions based on chord selection, syncopation, timing and emphasis. Regardless what our mode of expression copyright laws will protect those that are recorded on tangible medium from being copied. [1] Copyright law protects this book the world over. [2] It cannot be copied without permission. The copyright laws protect our writings, but also protect artwork, sculpture and in some cases software. Each area of copyright covers a wide berth of legal principles and applications. The combination is not easily understood if we focus too closely on the technical requirements and not on the substance of what we are attempting to accomplish.

Protection under the copyright law extends to "original works of authorship" that are fixed in a tangible form, what I refer to as the expressive object.[3]  The right comes into existence the moment that the form fixes in the medium of the expression object. "Original" under copyright law means that the author or artist produced the work by his or her own effort and not by copying a preexisting work.

Clearly, one cannot make a copy of a book, work of art or even a software program without permission of the copyright holder.  However, the law has also extended copyright protection to extensions, derivatives, modifications or equivalents of the expressive object. These works although not identical to the original, have sufficient identity with the copyrighted original to fall within the aegis of protection. Essentially, one cannot take a well-known plot and its characters, and create another plot regardless of the originality of the new plot. But, why? Boyle, explains it this way: “It is the originality of the author, the novelty which he or she adds to the raw materials provided by culture and the common pool, which “justifies” the property right and at the same time offers a strategy for resolving the basic conceptual problem …what concept of property would allow the author to retain some property rights in the work but not others?  In the German debates, the best answer was provided by the great idealist Fichte… (who)… disaggregated the concept of property in books. The buyer gets the physical thing and the ideas contained in it. Precisely because the originality of his spirit was converted into an originality for form, the author retains the right to the form in which those ideas were expressed…” [4]

This concept of retaining the expressive form finds application every time an author or artist takes a plagiarist into court. Recently, owners of Margaret Mitchel’s copyrights enjoined publication of a book entitled The Wind Done Gone, by Alice Randall on the basis that it infringed the famous novel Gone With The Wind. [5] The new work chronicles the diary of a woman named Cynara, the illegitimate daughter of Planter, a plantation owner, and Mammy, a slave who cares for his children. The plaintiff's copyright infringement claim rests on the fact that the defendant's book: (1) explicitly refers to Gone With the Wind in its foreword; (2) copies core characters, character traits, and relationships from Gone With the Wind; (3) copies and summarizes famous scenes and other elements of the plot from Gone With the Wind; and (4) copies verbatim dialogues and descriptions from Gone With the Wind.

Randall’s publishers claimed the story was parody--one of many defenses to copyright infringement. It is true that the law protects parody. But if it were not parody then the court would have to determine if the work were a recasting, adaptation or transformation of the original work. The standard for ascertaining infringement is whether the two works are substantially similar in regards to a host of features such as the work’s characters, character traits and relationships. District Court, Pannell, J., held that: (1) the works were substantially similar; (2) that the overriding purpose of "The Wind Done Gone" was to create sequel, not parody, although book was partially transformative; and (3) the book used more of original work than necessary to obtain the effect of parody. In this instance, the court considered the tone, plot, characters, setting, mood, and pace and determined that the two work’s were sufficiently substantially similar as to warrant a preliminary injunction against publication. We learn that intellectual property represents something more than the story. In the case of literary works it represents the expression of ideas through a language, cast in a genre, that makes a story unique--that moves the story from ideas to drafts, to a plots, with characters, to emerge a literary work.

To understand the expressive object we should understand what constitutes a work of authorship or art? Philosophers have argued that a work of art represents both a physical thing and an aesthetic object. Others have argued that it is one but, not the other. Clearly a work of art does not embody simply a picture of something. It embodies a unique combination of facets consisting of materials, mediums, form, content, subject matter, expression and representation of forms and contents. Analogously, musical performances contain these elements. The expressive objects in such performances are extant in the musical score, the instruments and their unique tonal qualities and timbres. We might even include the manipulation of the recording medium or the concert hall that produces aural sensations and visual perceptions. We see these forms of artistic imaginations take for in everything from commercials, to the artifacts of popular and traditional culture, the MTV performances to performances at the Metropolitan Opera House. Copyright protects the entirety of these creative efforts.

However there was a time when protection of certain forms of art had been in doubt. A 1903 case opened the way to the modern era favoring expansion of copyright protection. The shift came in a case involving a circus poster. Justice Oliver Wendell Holmes wrote for the majority: “We shall do no more than mention the suggestion that painting and engraving unless for a mechanical end are not among the useful arts the progress of which Congress is empowered by the Constitution to promote. The Constitution does not limit the useful to that which satisfies immediately bodily needs….It is obvious also that the plaintiff’s case is not affected by the fact, if it be one, that the pictures represent actual groups-visible things. They seem from the testimony to have been composed from hints or descriptions drawn from life that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Valasquez or Whistler was common property because other might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which in one man’s alone. That something he may copyright unless there is a restriction in the words of the act.” [6]

Contrary to popular belief any potentially registrable copyright work does not have to be copyrighted to enjoy protection under US law. Registration affords proof of ownership and grants rights and privileges, such as access to federal courts to claim copyright infringement. Damages in copyright theft cases may be difficult to prove, so registration also may permit a claim for statutory damages. If the work were very valuable it would be wise to register the copyright with the U.S. Library of Congress.

A copyright subsists in original works of authorship in literary works, musical works, pictorial, graphic works, motion and still pictures, sound recordings and choreographic works, and derivations and compilations of these. A copyright is not the “thing”. A copyright consists of the underlying right to deal exclusively with the “thing”. Examples of items that can be copyrighted include: advertisements, instruction manuals, art work, photographs, books, sound recordings, teaching materials and computer programs.

The owner of a copyright has the exclusive rights to: (1) to reproduce the work; (2) to prepare derivative works; (3) to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, such as by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the work anywhere; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to publicly display the work; and (6) in the case of sound recordings, to publicly perform the work by any means.

The moment we reduce an expression to any medium capable of perception or detection, a property right issues protected by copyright. For example, radio wave broadcasts, electronic representations of e-mails, tangible report, flow charts on a blackboard, phone messages, notes on your desk, a video, a recording, a photo or portrait paintings are all automatically copyrighted. [7] For someone other than the copyright owner to use anything that has been reduced into any medium, requires permission. Keep in mind that copyrights are licensable and assignable so the owner, the creator and the possessor of the article may be different persons.

Statistical information, facts and numbers are not copyrightable because they are information. [8] In a similar vein are mathematical or chemical formulas. Anyone should be able to use such information and more to the point express relationships between the abstract and ideals that scientific and mathematical formulas allow. To protect this kind of information we need to look to trade secret law.

Copyright provides protection for the expression of an idea but not for the idea itself. For example, you might decide to do an advertisement featuring a diner setting. Copyright in that advertisement would prevent others from copying it without your permission. However, copyright in that advertisement would not prevent third parties from creating an advertisement featuring a diner setting, as long as such third parties either expressed the idea in a manner different from your expression or, if in a manner similar to yours, developed it totally independently from seeing your advertisement. Merely having access to a publication containing advertisement might negate the presumption of independent development.

Likewise, I can author a scientific treatise on any of a thousand subjects, but I cannot stop anyone from using the ideas, axioms, postulate, theorems, propositions, formulas, or conclusions found in the manuscript. Keep this in mind: copyright protects only the manner of an author's expression in literary, artistic, or musical form. Copyright protection does not extend to names, titles, short phrases, ideas, systems or methods. So, a domain name, screen name or password cannot be protected by copyright. It also does not protect the way something functions--only patents can.

The distinction between a copyright and patent can be difficult to grasp. Indeed there have been great debates on where one ends and where the other begins. If we keep in mind that an expressive object has no causal effect upon the world, we will not confuse the two. If I invent a paperweight and place it on a piece of paper sitting on my desk, it imposes a force on the paper through its mass being acted upon by gravity. The paper remains stationary by the action and reaction of physical forces caused by gravity. If the stationery contains a message, it does not directly cause anything, regardless how moving in a literary or political sense the message might be.[9]

A hybrid protection referred to as a design patent protects the ornamentality of a utilitarian device. For example, designs for articles, such as car designs, wearing apparel, tool designs and household appliances and the like are not usually protected by copyright. Some countries have a classification called industrial design protection that protects the utilitarian aspect of a design form. Essentially, copyright does not protect how utilitarian device work, but protects the expressive features of such devices. However, a useful article can be copyrighted to the degree that its pictorial, graphic, or sculptural features exist independently of the utilitarian form in which they are embodied.[10]