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Copyright Law
Law 6102 – Professor Randazza’s Copyright Law Course – Barry University School of Law – Fall 2007
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August 26, 2007 at 5:32 pm |
According to U.S.C. Title 17 Section 101 a work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be percieved, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, are fixed for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
I would argue that skywriting could be considered to be fixed in a tangible medium of expression. Skywriting depends heavily on the right conditions in order for it to be successful. The area where the skywriting is going to be done, basically needs little to no cloud cover, so that the writing will be visible to the masses below. Skywriting is usually done over a beach, or stadiums filled with events(outdoor concerts, baseball, football, soccer games, etc.)Eventhough according to section 101 “a work consisting of sounds or images are fixed if they are being made simultaneously with its transmission like skywriting is, i would say it is a weak argument, because skywriting last’s only for a brief time, i would say 2-6 minutes at most after it is written.
A stronger argument can be made for skywritings companion medium which is sky typing which is described in the following link: http://www.answers.com/topic/skywriting?cat=biz-fin Skytyping transmission usually last between 10-30 minutes depending on conditions.
-Nilpesh Amin
August 26, 2007 at 9:00 pm |
What about intent? I have reviewed the link and the statutes and there is no intent requirement. There is no intent requirement in the copyright protection. It is simply the creating of something. However, it is advisable for an intent consideration.
If the author or creator never intended the work to be permanent and/or reasonably knew the work would be evanescent, then it should not be found to be fixed. Though crude, I would analogize skywriting to peeing in the snow. The creators of both types of work knew from the onset that the work would not be permanent. The work would be destroyed and forgotten almost immediately. Arguendo, if the Great American novel was written in the sky then the fixation element may need to be reconsidered. At this point, the only things written in the sky are marriage proposals, Disney messages, and advertisements. How can someone be given an exclusive right to something that exists for maybe 30 min? Perhaps the copyright can be extended to the author for the duration of the creation.
The fixation required it to be reasonably perceived. Both skywriting and peeing in the snow require the viewers to be present at the onset of the creation. How can something be perceived or viewed if it can be distorted or erased in the blink of an eye. Though the skywriting may last 30 min, what version of the text would the copyright protect? The original or the verions the winds changed?
Skywriting is not the type of creation that the copyright protection sought to protect. It is without protection. It is inherently temporary. It is so temporary that there is no expectation of protection. Further, the author, presumptively, had no intent to create a protected material.
August 27, 2007 at 2:20 am |
Plenty of room for debate. We often hear and read about considerations of legislative intent and statutory history when judges are wrestling with the gray areas of statutory interpretation. I can’t get my arms around this question without first asking, why is the requirement for fixation in the statute at all? If we can carefully come to terms with the reason for the requirement, we can perhaps stumble upon a better way to answer questions about skywriting and ice sculptures.
Suppose there was no requirement. I think the result would be an endless flood of litagation. Obvious right, but sketch it out anyway. Some clever poet coins a phrase that goes something like, “to be or not to be, that is the question.” It is never written or recorded in any way, and two weeks later some other genius gets famous on the phrase “to bo or not to be, I wonder?” Poet number one proclaims that he has been ripped off. Of course, in his recolection, poet 2’s phrase is exactly as poet 1 remembers his own. Where do we go from there? Fixation is absolutely necessary because it is the best evidence of the original. The dullest pencil is better than the sharpest mind. (ooh, is that cliche public domain or did I just infringe)
Now some new genius, a pilot of course, in celebratioin of his team winning its fourth consecutive super bowl, skywrites the inspirational, and never before considered phrase “4peat.” Is it, and should it be his? It is original, it is creative, it is written. It is observed by tens of thousands, perhaps millions. It is dumb, but quality does not matter, and the next day, the teams fan club launches a t-shirt enterprise that nets millions.
The one phrase I can’t seem to get away from is “rip off.” Can’t define it but I know it when I see it. (oops I did it again) I think our skywriter got ripped off. It was his idea, and it made a million dollars for some one else. Should it be protected? I guess I think it should. And if that doesn’t go far enough, maybe the fact that it was fixed in the minds of millions of viewers should be enough. The world is not clean and clear cut, but for the sake of argument, if it were indubitably known that the skywriter’s phrase was original, never before scribed or recorded in any medium or even thought of…Understood and uniformly recognized by every attending fan and home viewer. Why should he not be protected by copywrite?
Tony Fisichella
Don’t you think you might be drifting a little bit into trademark, and not copyright?
-MJR
August 27, 2007 at 1:40 pm |
I think Mr. Blevins has a point. Once the skywriting starts changing, which is does as it disspiates (and will do so quickly or slowly depending upon the conditions, much like an ice sculpture) what part becomes protercted and fixed? I don’t think it matters who is able to perceive it as long as it is capable of being perceived. I think that the idea once reduced to a tangible medium (and are puffs of air tangible, I mean can someone touch it or it is akin to pixes on a computer screen) would be protectable. I have to say that I am more likely to take a very cautious approach to this interpretation and here’s why. Justice Thomas is a fan of strict originalism, whatever the text says is what it says and if it doesn’t contemplate something different, too bad, Congress has to fix that not the court. Justice Scalia has a slightly different approach labeled pragmatic originalism which permits some flexibility in that he would view the result of an interpretation and fashion a pragmatic approach. I think that Justice Scalia’s approach offers the best way to view the temporal nature of ice scultping or skywirting. I think Justice Scalia might find that skywriting and ice sculpting are, realistically, worthy of protection as long as and until, the original idea is no longer perceived as the original idea (melting or dissipation taking its toll on the creation).
Mark K. McCulloch
August 27, 2007 at 10:23 pm |
Copyrightable material must be fixed in a tangible medium. I don’t believe that the sky qualifies as a tangible medium. I also don’t think I can comment further without being redundant.
August 28, 2007 at 12:42 pm |
I think skydiving is fixed. Fixed is such a vague term and it can essentially be argued that anything is fixed. In my opinion a work only needs to permanent enough for a reasonable individual to percieve the creative value in it. For instance a song is copyrighted when it is performed live even if it is by band with no record label and they have not published the song, the individual words of the song are in existence for mere milliseconds but yet nobody argues that the song isnt copyrightable. To draw this back to the skywriting, it may only be in existence for several minutes, but those several minutes are certainly long enough for a reasonable individual to percieve the creative value of the work (not that skywriting tends to lend itself to that much originality), and this certainly applies to ice sculptures that may last for several hours (except in FL in the summer) or sandcastles etc.
Jeff Grant
You wrote “a song is copyrighted when it is performed live even if it is by band with no record label and they have not published the song.”
But, is that the point here? What we are talking about it fixation, not the special provision for live performances. Don’t get confused in that regard. I think you are right, that skywriting would be “fixed,” despite the fact that the medium does not lend itself to much permanence. But then again, what truly does?
-MJR
August 28, 2007 at 4:54 pm |
It seems like Skywriting like would not be “fixed” in terms of the Copyright Act. For the purposes of the Copyright Act a work is fixed when it is placed in a relatively stable and permanent embodiment. Leaffer, Marshall, Understanding Copyright Law 49 (LexisNexis 2005). I guess the next question one might ask is the “sky” or “air” a “permanent embodiment”. Understanding Copyright Law, goes on to say that the fixation requirement would not be met, and therefore copyright protection not being attained if the “writing” in this case, could not be recorded in some form. Id. at 50. Things like a live broadcast, ice sculptures and sand castles are to “evanescent” or “transient” to meet the tangibility requirement. Id. The sky doesn’t appear to be a stable medium enough to have its author placed his idea in the air using smoke. The smoke it self may not be a “stable” enough medium to be considered fixed in terms of the Act. Perhaps if a picture were taken, with the author’s knowledge of the legible writing could be fixed. Of course the arguments that say the projected images shown electronically on tv, are excluded would make it hard to accept the idea that Skywriting could be fixed. It seems however for the conflicting positions that the courts have, regarding RAM memory (MAI Systems), that Skywriting could be fixed once there is a copy of the writing that the original creator, authorizes, and any direct copy made after that would constitute copyright infringement.
JASON RICHARDS
August 28, 2007 at 6:26 pm |
But what if (presumably) the sky writing author did intend to creat protected material and sky writing was the absolute best way to get his mesage comunicated? Should society then deprive him of the benefits of his original creative expression?
In my mind one can’t divorce the fixation requirement from the originality requirements when trying to address this question. Thus, if the writing is sufficiently original and the writing is in the sky long enough to be perceived by the public, this satisfies the tenets of the statute.
August 29, 2007 at 7:28 am |
I think skywriting is absolutely fixed. As long as it is placed in such a manner that it can be perceived, then it is considered fixed. To say that just because it is in the sky instead of on paper means that it isn’t fixed just seems somewhat wrong to me. How many times do people look up at the clouds passing overhead and say that cloud looks like a dog or a bunny? Then the wind shifts and the shape is gone, but someone still perceived it. I’m not trying to say that cloud shapes are copyrightable. That’s not my point. The point I’m trying to make is that if something naturally occurring, and quite fleetingly, can be perceived, then why can’t something intentionally placed there?
August 29, 2007 at 7:30 am |
Previous post by Kathryn M. Dolan
My apoogies. I hit submit before typing my name and couldn’t get it typed in time.
Kathryn M. Dolan
August 30, 2007 at 2:24 am |
My problem here is what would be considered fixed and what is transient. If skywritng is in place as long as an ice sculpture on a hot day, why wouldn’t it also be considered for copyright protection? I think that is should be at least considered becuase of it nature to remain in that sky for a specified period of time. I am not sure the courts will be willing to put a time limit on fixed or transient works. As long as a work is perceivable then I think it is possible that it can fall safely within the bounds of copyright protection.
Penelope Barrett
September 18, 2007 at 1:42 pm |
Copyright law tells us that “fixation, like originality, is defined minimally as just having sufficient stability or permanence to be perceived, reproduced or otherwise communicated for a ‘period of more than transitory duration’.”
Skywriting, though admittedly transient, CAN fit the description of “fixation” under copyright law. I think the “perception” factor is huge here; almost anything can be in existence long enough to be perceived in one way or another, therefore equaling the sufficiency needed to be deemed “fixed.”
Kimberly Harchuck
June 3, 2008 at 2:09 pm |
I believe everyone is wrong.
Although “fixed’ as to be perceived, it needs to be in a “tangible medium of expression”
“tangible” means that one can sense it with touch.
I cannot sense a cloud. I may feel cold in fog but I cannot touch it.