Copying Randal C Picker James Parker Hall Distinguished Service Professor of Law The Law School The University of Chicago November 26 2019 2 106 Exclusive rights in copyrighted works Subject to sections 107 through 121 the owner of copyright under this title has the exclusive rights to d ID: 777563
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Class 2Copyright Autumn 2019Copying
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of Chicago
Slide2November 26, 2019
2
106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2)
to prepare derivative works based upon the copyrighted work
;
Slide3November 26, 2019
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101: Derivative Work
A “derivative work” is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in
which a work may be recast, transformed, or adapted
.
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101: Derivative Work
A
work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
Slide5What Counts as a Copy?Hypo 1I take a picture of StonehengeIgnore fact is in UK
You see my picture and are inspired by it
You fly to Stonehenge and take another picture of it
I sue you for copyright infringement: who wins?November 26, 2019
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TTYN (1 of 2)
Slide6What Counts as a Copy?Hypo 2Again, I take a picture and again, you see itYou say: “I could fly to Stonehenge to take a picture or I could Xerox this one.”
You copy it
I sue you for copyright infringement: who wins?
November 26, 2019
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TTYN (2 of 2)
Slide7Hypo 1 AnswerWe both get copyrights in our photographsThere is n
o copyright infringement
November 26, 2019
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Slide8Hypo 2 AnswerSimple copyright infringement
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Slide9What Counts as a Copy?Hypo 3I take a picture of StonehengeYou see my picture and are inspired by it
You fly to Stonehenge and make a miniature model of it out of clay
I sue you for copyright infringement: who wins?
November 26, 2019
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TTYN (1 of 2)
Slide10What Counts as a Copy?Hypo 4I take picture of Stonehenge, you see it.You decide to make a miniature model of Stonehenge out of clay
Working from my picture, you build your model of Stonehenge
I sue you for copyright infringement: who wins?
November 26, 2019
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TTYN (2 of 2)
Slide11Hypo 3 AnswerNo infringement
November 26, 2019
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Slide12Hypo 4 AnswerTricky?No infringement?Sculpted work won’t preserve lighting, camera angles
Should just re-create the original object built by the Druids
November 26, 2019
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Slide13Hypo 4 AnswerTrickyInfringement?: Holmes’s Statement in
Bleistein
“Others are free to copy the original. They are not free to copy the copy.”
Implementing HolmesDoes the mini-Stonehenge made from looking at my photo copy the copy or copy the original?November 26, 2019
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Slide14Rogers’s PuppiesScanlon Hires Rogers to Photograph PuppiesRogers is paid $200 for prints by the Scanlons
Rogers did the creative work in figuring out how to do the picture
Rogers retained the copyright to the work
November 26, 2019
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Slide15Rogers’s PuppiesRogers Licenses Work to Museum Graphics5,000 notecards printed initially
Subsequent printings
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Slide16Creating “String of Puppies”1988 Banality Exhibition at Sonnabend GalleryKoons looking create a group of art works
Selects studios to do physical work of creating pieces
Buys notecard of Puppies
Tears off copyright notice and gives it executing artisansNovember 26, 2019
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Slide17Authorship?Not discussed here but note …Koons as animating creative force vs. artisans who actually build the thing in questionOne author? Koons or the artisans? Joint authors?
November 26, 2019
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Slide18November 26, 2019
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JeffKoons.com (2 Oct 2019)
Banality Show
Slide19November 26, 2019
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JeffKoons.com (2 Oct 2019)
String of Puppies
Slide20November 26, 2019
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cpyrightvisualarts.wordpress.com
(2 Oct 2019)
String of Puppies
Slide21The LawsuitFactsKoons sells three copies of String of Puppies for $367,000Keeps fourth copy for himself
Friend of Scanlon sees picture of Koon’s work in LA Times, who in turn tells Rogers
Rogers sues for infringement
November 26, 2019
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Slide22Copying the Work v. Accessing the OriginalWhat limits how a subsequent user can access the original?Do I have to go directly to the original or can I access the original through someone else’s work?
November 26, 2019
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Slide23Why Not This?Mini-Stonehenge obviously not a copy becausePhoto was just two-dimensional image of StonehengeMini-Stonehenge is 3D form
Change in dimensionality precludes copying?
November 26, 2019
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Slide24Now Rogers v. KoonsShould we say …Koons was just accessing original through the photograph
ala
the mini-Stonehenge example
Koons also switched the dimensonalityErgo no copying of copy, just 3D implementation of original accessed through the photo?November 26, 2019
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Slide25No Independent Original HereStonehenge Exists SeparatelyI didn’t create Stonehenge when I took a picture of it; it existed already
November 26, 2019
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Slide26No Independent Original HereRogers Created Puppies ala
Burrow-Giles
“
It is not therefore the idea of a couple with eight small puppies seated on a bench that is protected, but rather Roger’s expression of this idea—as caught in the placement, in the particular light, and in the expressions of the subjects—that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable.”November 26, 2019
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Slide27November 26, 2019
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102. Subject matter of copyright: In general
(a)
Copyright protection subsists, in accordance with this title, in
original works of authorship fixed
in any
tangible medium of expression
, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
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102. Subject matter of copyright: In general
(b)
In no case does copyright protection for an original work of authorship extend to any
idea, procedure, process, system, method of operation, concept, principle, or discovery
, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Slide29Using The Idea: Idea InstructionsThe Idea Behind Puppies“
…
had appellant simply used the
idea presented by the photo, there would not have been infringing copying …”November 26, 2019
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Slide30Using The Idea: Idea InstructionsHand this instruction to artisans:“Please create a sculpture of a couple seated on a
bench with
eight small
puppies.”What do we think the artisans would have produced?November 26, 2019
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Slide31Calculating DamagesOn the one hand“… we think that a reasonable license fee for the use of
‘Puppies’
best approximates the market injury sustained by Rogers as a result of
Koons’ misappropriation.”Meaning no harm to market for original work and harm was lost opportunity to licenseNovember 26, 201931
Slide32Calculating DamagesOn the other hand“… Rogers remains at liberty to elect statutory damages in lieu of an award of actual damages and apportioned profits. See
17 U.S.C. § 504(c
). In fact, given Koons’ wilful and egregious behavior, we think Rogers may be a good candidate for enhanced statutory damages.”November 26, 201932
Slide33Evidence of Copying and Substantial SimilaritySays the Second Circuit re The Ordinary Observer Test“
Substantial
similarity
does not require literally identical copying of every detail. Such similarity is determined by the ordinary observer test: the inquiry is ‘whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.’”November 26, 201933
Slide34Two ImagesNovember 26, 2019
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Slide35Two ImagesNovember 26, 2019
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Slide36November 26, 2019
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Slide37A Preliminary ConversationDiscuss the relationship between these two imagesIs there copying here? Does it differ from what went on in
Rogers
,
Burrow-Giles or Bleistein?Are they substantially similar per the CA2 test in Rogers v. Koons?November 26, 201937
TTYN
Slide38Mechanics of Substantial SimilarityThree Steps1. Dissect the work
Meaning identify protected elements and unprotected elements and filter out the unprotected elements
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Slide39Mechanics of Substantial SimilarityThree Steps2. Apply the extrinsic test
“Assess the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression.”
November 26, 2019
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Slide40Mechanics of Substantial SimilarityThree Steps3. Apply the intrinsic test
“… a more holistic, subjective comparison of the works to determine whether they are substantially similar in ‘total concept and feel.”
Both extrinsic and intrinsic tests must be met for copying to be found
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Slide41Mechanics of Substantial SimilarityConsidering the TestsWhat are the virtues/vices of this approach?
How should we apply them here?
November 26, 2019
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Slide42Copies and Derivative Works AgainQuestionIf the Nike photo isn’t a copy of
Rentmeester’s
original, what does that tell us about whether the work fixed in the Nike photo is a derivative work of
Rentmeester’s original work?November 26, 201942
Slide43A Different ConversationIncentives for CreationDo we think Rentmeester
would have taken the original photo even if he had known of the subsequent use that Nike would make of it?
Does that matter? Should that matter?
November 26, 201943
Slide44A Third ImageNovember 26, 2019
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