Class 2 Copyright Autumn 2019 - PowerPoint Presentation

Class 2Copyright Autumn 2019Copying 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 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 ;

November 26, 2019 3 101: 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 .

November 26, 2019 4 101: 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”.

What 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 5 TTYN (1 of 2)

What 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 6 TTYN (2 of 2)

Hypo 1 AnswerWe both get copyrights in our photographsThere is n o copyright infringement November 26, 2019 7

Hypo 2 AnswerSimple copyright infringement November 26, 2019 8

What 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 9 TTYN (1 of 2)

What 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 10 TTYN (2 of 2)

Hypo 3 AnswerNo infringement November 26, 2019 11

Hypo 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 12

Hypo 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 13

Rogers’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 14

Rogers’s PuppiesRogers Licenses Work to Museum Graphics5,000 notecards printed initially Subsequent printings November 26, 2019 15

Creating “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 16

Authorship?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 17

November 26, 2019 18 JeffKoons.com (2 Oct 2019) Banality Show

November 26, 2019 19 JeffKoons.com (2 Oct 2019) String of Puppies

November 26, 2019 20 cpyrightvisualarts.wordpress.com (2 Oct 2019) String of Puppies

The 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 21

Copying 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 22

Why 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 23

Now 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 24

No Independent Original HereStonehenge Exists SeparatelyI didn’t create Stonehenge when I took a picture of it; it existed already November 26, 2019 25

No 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 26

November 26, 2019 27 102. 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.

November 26, 2019 28 102. 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.

Using 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 29

Using 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 30

Calculating 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

Calculating 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

Evidence 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

Two ImagesNovember 26, 2019 34

Two ImagesNovember 26, 2019 35

November 26, 2019 36

A 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

Mechanics of Substantial SimilarityThree Steps1. Dissect the work Meaning identify protected elements and unprotected elements and filter out the unprotected elements November 26, 2019 38

Mechanics 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 39

Mechanics 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 November 26, 201940

Mechanics of Substantial SimilarityConsidering the TestsWhat are the virtues/vices of this approach? How should we apply them here? November 26, 2019 41

Copies 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

A 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

A Third ImageNovember 26, 2019 44