Copyright in Demand Letters?

Review this link, then do your own research. Give me your candid opinion (1000 words or less)

Fartman Case

Read this entry and the linked case materials.

Recent Bar Journal Article

Read and comment:

In this Digital Age, Are We Protecting Tomorrow’s “Masterpieces”?

You may want to skip forward in your reading on VARA and Moral Rights before commenting.

Tony Fisichella on Characters

MGM v. Honda and copyrightability of characters.

The Sam Spade test makes it clear that characters are not copyrightable unless they constitute the story being told. Unfortunately the text does not go very far to explain what this means. What does it mean that the character is the story being told. The only reasonable clue and the one discriminator I am left to hang my hat on is this…people don’t watch Rocky, Tarzan, Bond or Sherlock Holmes for the story line but to watch their heroes in action. Is that the standard upon which we determine the copyrightability of characters? Need we bother considering uniqueness, originality, creative expression. The Spade test seems to require a series of episodes to create the ‘story being told’ characteristic of the character. Batman was a pretty unique character once, and certainly he is should fit the ‘story being’ told test but his characteristic attributes have become almost common. The dark night. The Hero with a dark side, battling his own internal demons as well as the demons of the world… The main character from “The Shield” saves the innocents but violates all sorts of laws and social conventions in the process. Spider man has been given a dark side, Superman has been given a dark side, Hell boy, The new character from TBS “Saving Grace” battling her internal demons while saving the world. How about Blade…we even have sympathetic vampires now. So Batman’s defining characteristic is not so unique any more, but it was once. Am I to understand, that now, since he so easily meets the Sam Spade test, Batman is copyrightable, but after his first issue, when he was still a unique, original and creative expression, since he was not yet the story, Batman was not protected? Is Cinderella the story being told, or is she a character in the story. Is Cinderella protected? Is Cinderfella? (a final reference obscure enough to impress Dennis Miller)

The Prof Was Wrong!

In class on Tuesday, Ms. Warrington asked if a violation of a creative commons license would be a breach of contract claim or a copyright claim. I said that I would do more research, but I thought that it would likely sound in copyright, and not in contract.

It looks like at least one court says I am wrong.

Yum! Humble pie!

Two Recent Cases on Joint Authorship

For those of you who are fans of the Goldstein approach, the Central District of California recently reaffirmed that the 9th Circuit follows the Goldstein theory that all joint authors must contribute independently copyrightable content in Siegel v. Time Warner Inc., 2007 U.S. Dist. LEXIS 56910 (C.D. Cal. 2007). However, that does not resolve the issue nor change the correct answer in this class.

Golan v. Gonzalez

Read about Lessig’s attempt to undo the damage done by Eldred.

Idea – Expression – Merger Doctrine Case and Comment

The Second Circuit employs the copyright merger doctrine — holding that mercantile exchange settlement prices are not protectable.

See New York Mercantile Exchange v. Intercontinental Exchange, No. 05-5585-cv (2d Cir. Aug. 1, 2007).

Patry has a great critique here:

The merger doctrine has been explained by language like, “When the ‘idea’ and its expression are … inseparable, copying the ‘expression’ will not be barred, since protecting the expression’ in such circumstances would confer a monopoly of the ‘idea’ upon the copyright owner free of the conditions and limitations imposed by the patent law.” Subsequent courts have expanded the doctrine’s reach, finding it applicable when there are a number of ways to express a particular idea, and yesterday’s Second Circuit opinion follows this trend.

The doctrine is, however, based on a faulty premise: If an idea and its alleged expression are truly inseparable, there can be no selectivity sufficient to permit originality. This is also true if there are only a limited number of ways to “express” the idea. Such a conclusion is, in reality, a statement that the purported copyright owner’s way of expressing the idea contains only a de minimis number of non-ideas. So understood, merger is merely a judgment that there is a lack of originality and thus, like the idea-expression dichotomy, merger merely reflects a judgment about where on the continuum of expression the work at hand lies. The prices asserted by NYMEX fall off the spectrum completely.(source and more)

Fair Use Economy Represents One-Sixth of U.S. GDP

WASHINGTON D.C. – Fair Use exceptions to U.S. copyright laws are responsible for more than $4.5 trillion in annual revenue for the United States, according to the findings of an unprecedented economic study released today. According to the study commissioned by the Computer and Communications Industry Association (CCIA) and conducted in accordance with a World Intellectual Property Organization methodology, companies benefiting from limitations on copyright-holders’ exclusive rights, such as “fair use” – generate substantial revenue, employ millions of workers, and, in 2006, represented one-sixth of total U.S. GDP.

Source

More Explanation of Joint Authorship

I recognize that there still is some confusion regarding Joint Authorship. I really am going to stop using this text, as I believe that Posner’s opinion in Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) articulates it better than any case in the book, and this is the case from which exam questions will be drafted.

McFarlane makes two arguments for why Gaiman does not have copyright in Medieval Spawn (the name that McFarlane settled on for Olden Days Spawn) or Cogliostro. The first is that all that Gaiman contributed was the idea for the characters, and ideas are not copyrightable, only expression is and the expression was due to McFarlane’s drawing of the characters. It is true that HN15people who contribute merely nonexpressive elements to a work are not copyright owners. As we said in Seshadri v. Kasraian, supra, 130 F.3d at 803, “the assistance that a research assistant or secretary or draftsman or helpfully commenting colleague provides in the preparation of a scholarly paper does not entitle the helper to claim the status of a joint author.” HN16There has to be some original expression contributed by anyone who claims to be a co-author, and the rule (we’ll consider an exception momentarily) is that his contribution must [**34] be independently copyrightable. E.g., Erickson v. Trinity Theatre, Inc., supra, 13 F.3d at 1071; Aalmuhammed v. Lee, supra, 202 F.3d at 1231; 1 William F. Patry, Copyright Law and Practice 362-65 (1994). Had someone merely remarked to McFarlane one day, “you need a medieval Spawn” or “you need an old guy to move the story forward,” and McFarlane had carried it from there, and if later a copyeditor had made some helpful editorial changes, neither the suggester nor the editor would be a joint owner. Cf. Erickson v. Trinity Theatre, Inc., supra, 13 F.3d at 1064, 1071-72. Otherwise almost every expressive work would be a jointly authored work, and copyright would explode.

But where two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim [*659] copyright. That would be peeling the onion until it disappeared. The decisions that say, rightly in the generality of cases, [**35] that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren’t thinking of the case in which it couldn’t stand alone because of the nature of the particular creative process that had produced it.

Here is a typical case from academe. One professor has brilliant ideas but can’t write; another is an excellent writer, but his ideas are commonplace. So they collaborate on an academic article, one contributing the ideas, which are not copyrightable, and the other the prose envelope, and unlike the situation in the superficially similar case of Balkin v. Wilson, 863 F. Supp. 523 (W.D. Mich. 1994), they sign as coauthors. Their intent to be the joint owners of the copyright in the article would be plain, and that should be enough to constitute them joint authors within the meaning of 17 U.S.C. § 201(a). This is the valid core of the Nimmers’ heretical suggestion that HN17″if authors A and B work in collaboration, but A’s contribution is limited to plot ideas that standing alone would not be copyrightable, and B weaves the ideas into a completed literary expression, it would seem that [**36] A and B are joint authors of the resulting work.” 1 Nimmer & Nimmer, supra, § 6.07, p. 6-23; see also 1 Patry, supra, at 365-66.

The contents of a comic book are typically the joint work of four artists–the writer, the penciler who creates the art work (McFarlane), the inker (also McFarlane, in the case of Spawn No. 9, but it would often be a different person from the penciler) who makes a black and white plate of the art work, and the colorist who colors it. The finished product is copyrightable, yet one can imagine cases in which none of the separate contributions of the four collaborating artists would be. The writer might have contributed merely a stock character (not copyrightable, as we’re about to see) that achieved the distinctiveness required for copyrightability only by the combined contributions of the penciler, the inker, and the colorist, with each contributing too little to have by his contribution alone carried the stock character over the line into copyright land.

Gaiman v. McFarlane, 360 F.3d 644, 658-659 (7th Cir. 2004)

If you want something closer to home, the Northern District of Georgia has (very recently) decided to follow the Nimmer theory. See Gordon v. Lee, 2007 U.S. Dist. LEXIS 35361, 23-26 (N.D. Ga. 2007).

In Childress v. Taylor, 945 F.2d 500, 506-08 (2nd Cir. 1991), the Second Circuit held that a joint authorship claimant was required to prove: (1) that he made a copyrightable contribution to the work; and (2) that [*24] the contributors intended to regard themselves as joint authors. There is no question that the intent of the contributors to a work is relevant and significant. The Copyright Act explicitly provides that joint authors must have intended “that their contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101. See M.G.B. Homes, 903 F.2d at 1492 (“There is no evidence that it was the intent of either Ballough or Unlimited that this concept (the sketch) become part of the finished expression (the architectural plans and drawings). In fact, the sketch did not form an ‘inseparable or interdependent’ part of the final house drawings.”).

With regard to the Childress court’s requirement that each joint author must prove that he or she made a copyrightable contribution to the work, there is not a general consensus among the circuit courts about whether the Copyright Act itself provides such a requirement. As even the Childress court recognized, “The [Copyright] Act surely does not say that each contribution to a joint work must be copyrightable, and the specification that there be ‘authors’ does not [*25] necessarily require a copyrightable contribution.” Childress, 945 F.2d at 506. Professor Nimmer’s position is that while the finished work must be copyrightable, each author’s contribution need not be copyrightable. Nimmer on Copyright § 6.07. HN13The Seventh Circuit adopted this viewpoint in Gaiman v. McFarlane, 360 F.3d 644, 658-59 (7th Cir. 2004), and noted that while “[t]here has to be some original expression contributed by anyone who claims to be a co-author,” the requirement that each contribution be independently copyrightable leads to paradoxical results in some situations. The contributors’ joint labors may have sufficient originality and creativity to be copyrightable, but no single individual’s contributions would be copyrightable. Id. In such a situation, under the holding in Childress, no one could claim a copyright in the work.

For these reasons, the court finds the reasoning of Professor Nimmer and the Seventh Circuit to be persuasive. n3 HN14A joint author is not required to establish that his or her contribution to a work was independently copyrightable. Instead, a joint author claimant must show [*26] that he or she contributed to the work some original expression which became “part of the finished expression” and that the contributors intended to be joint authors. The court will apply this standard to the present case in determining whether Murphy, Lee or Gordon were joint authors of the residential designs.

I don’t care what Goldstein says. Nimmer and Patry seem to agree, and even the 7th Circuit, which gave us Erickson v. Trinity Theatre has corrected its course.