Category: Non-AI Copyright

Copyrights: Copyright law news and commentary from Cokato, Minnesota attorney Thomas James (Thomas B James) of the Law Office of Tom James | This category includes general legal issues such as the requirements for a valid copyright, ownership rights, registration, infringement, enforcement procedures, and damages.

A copyright win in the Internet Archive lawsuit

Book publishers have won their lawsuit against the Internet Archive. What does it mean for copyright owners? Cokato Copyright Attorney Tom James explains.

New York Public Library public domain image; this is NOT the library that is involved in this lawsuit.

 

In a previous blog post, I wrote about a lawsuit that book publishers Hachette Book Group et al. have filed against Internet Archive (“IA”) et al. The lawsuit alleges that IA scans copyright-protected printed books into a digital format, uploads them to its servers, and distributes these digital copies to members of the public via a website – all without a license and without paying the authors and publishers. The lawsuit asserts claims of copyright infringement.

A permanent injunction

Judge John Koeltl has now approved a consent judgment providing for a permanent injunction that prohibits Internet Archive from scanning and distributing copyrighted books. It applies only to books that copyright owners have already published and made available in e-book format. As Judge Koeltl put it: “The Court has narrowly tailored the injunctive relief in this case to cover only copyrighted works, like the Works in Suit, that are available from the Publishers in electronic form.”

IA reportedly plans to appeal.

A new lawsuit

This month, Sony Music Entertainment et al. filed a similar copyright infringement lawsuit against IA. This complaint alleges that IA digitized and distributed digital copies of 78 rpm records by Frank Sinatra, Billie Holiday, and other recording artists in violation of the rights of copyright owners.

 

Copyright Registration and Management Services

There is now an inexpensive, intelligent alternative to “copyright mills” that is creator-friendly as well as a time-saver for attorneys.

In the United States, as in most countries, it is possible to own a copyright without registering it. Copyright registration is not a prerequisite to copyright protection. Rather, a copyright comes into being when a human being fixes original, creative expression in a tangible medium (or when it is fixed in a tangible medium at a human being’s direction.) Nevertheless, there are important reasons why you should register a copyright in a work you’ve created, particularly if you live in the United States.

Reasons for registering copyrights

If you live in the United States, the most important reason for registering a copyright is that you will not be able to enforce it unless you do. As a condition of filing an infringement claim in court, the United States Copyright Act requires a copyright owner to have applied for registration and received either a certificate of registration or a denial of registration from the U.S. Copyright Office. Registration is not a prerequisite to serving a cease-and-desist letter or a DMCA take-down notice. If you want to enforce your copyright in court, though, then you will need to register it.

This is true, as well, of infringement claims filed in the new Copyright Claims Board (sometimes called the “copyright small claims court” or “CCB”). It is not necessary to have received either a registration certificate or denial letter from the Copyright Office before filing a claim with the CCB. It is necessary, however, to have at least applied for registration before filing a claim.

Prompt registration is also important. You may not be able to recover statutory damages and attorney fees in an action for copyright infringement unless you registered the copyright either within three months after first publication or before the infringement began.

Registration gives you the benefit of a legal presumption that the copyright is valid. It also gives rise to a presumption of ownership, and that all of the other facts stated in the certificate (date of creation, etc.) are true.

Registration is not only critical to enforcement; it is also an important defensive strategy. If someone else registers the work and you do not, then they get all of the benefits described above and you do not. As the original creator of a work, you do not want to find yourself in the position of being sued for “infringing” your own work.

Registration workarounds that aren’t

The “poor man’s copyright”

One dangerous myth that has been circulating for years is that simply mailing yourself a copy of your work will be enough to establish your rights in it. This is not true. Anybody can make a copy of someone else’s work and mail it to himself or herself. Even if doing that could establish a person’s rights in a work, it is still going to be necessary to register the copyright in the work in order to enforce it in the U.S. legal system. And you won’t get any of the other benefits of registration, either, unless you do.

Posting to YouTube or another Internet website

Posting a copy of a work to YouTube or another Internet website is a modern-day version of the “poor man’s copyright” myth. The best this will do, however, is provide a date and time of posting. That proves nothing about authorship, and it does not provide any of the benefits of registration.

Notary

Notarization only verifies the validity of a signature; it does not prove anything about authorship.

Having an agent, distributor or licensing agency

Having an agent or a distributor, or listing with ASCAP, for example, does not prove authorship, nor does it provide any of the benefits of registration.

Registries and databases

Some websites offer to list your work in a “registry” or other database, supposedly as a means of protecting your copyright in the work. Some of these websites border on fraud. “Registering” your work with a private company or service will not prove authorship and will not give you any of the other benefits of registration. In the United States, the benefits of registration flow only to those who register the copyrights in their works with the United States Copyright Office.

True copyright registration services

Not all online copyright registration services are scams. Some of them will actually get a customer’s copyright registered with the United States Copyright Office. It is still necessary to proceed with caution when using them, however. Here are some things to watch out for.

Per-work vs. per-application

Pay careful attention to whether service fees are charged “per work,” on one hand, or “per application,” on the other.

If you have more than one work to register, it may sometimes be possible to register them with the Copyright Office as a group rather than individually. For example, a group of up to ten unpublished works by the same author may be registered with the Office using one application and paying one filing fee. Similarly, up to 750 photographs can sometimes be registered together as a group using only one application and paying only one filing fee.

An online service that offers to register copyrights at the rate of $100 “per work” might not inform users about the Copyright Office’s group registration options. Imagine paying $75,000 plus $33,750 filing fees to register copyrights in 750 photographs when you might have done it yourself, using one application, for a $55 filing fee.

Single, standard or group application

Once you’ve selected a service whose rates are “per application” rather than “per work,” you will want to ensure that the service includes group registration options. If a service indicates that it will prepare a “single” or “standard” application, then this may mean that it will not prepare applications for group registrations. Find that out before proceeding.

GRAM and GRUW applications

If you are a musician or composer, you may be able to qualify for a significant discount on Copyright Office filing fees by filing a GRAM or GRUW application. These are special application forms that allow the registration of up to 10 unpublished songs, or up to 20 published songs on an album, using one application and paying one filing fee. They are relatively new additions to the Copyright Office’s application forms repertoire. Some registration services will not, or do not yet, work with them.

Fees

First, understand the difference between a service fee and the Copyright Office filing fee. The Copyright Office filing fee is usually going to be between $45 and $85, depending on the kind of application. When a website quotes a fee for the service it provides, the fee it quotes normally does not include the Copyright Office filing fee — unless, of course, the website expressly says so.

Online registration service companies charge different rates for their services. One attorney website I saw quoted a $500 flat fee “per work.” Apparently, he would intend to charge $5,000 to register a group of 10 works.

Other services quote a much lower fee, typically somewhere between $100 and $250, either per work or per application.

These services typically are limited to filing a registration application, and nothing more. Some of them stand behind their work. Others charge additional fees if an application is rejected and they need to do additional work to fix the problem.

 

Disclosure statement

I do not own or have any interest in RightsClick. I have not been paid and have not received anything of value in connection with this post. This post is not an endorsement or advertisement for RightsClick or the services it offers. It is simply an announcement of what appears to me to be a service that could be of considerable benefit to authors, creators, publishers and attorneys.

Copyright owners prevail in Internet Archive lawsuit

A federal district court has ruled in favor of book publishers in their copyright infringement lawsuit against Internet Archives

In June, 2020 four book publishers filed a copyright infringement lawsuit against Internet Archive. The publishers asserted that the practice of scanning books and lending digital copies of them to online users infringed their copyrights in the books. On Friday, March 24, 2023, a federal district court judge agreed, granting the publishers’ motion for summary judgment.

The Internet Archive operation

Internet Archive is a nonprofit organization that has undertaken several archiving projects. For example, it created the “Wayback Machine,” an online archive of public webpages. This lawsuit involves another of its projects, namely, the creation of a digital archive of books. Some of these are in the public domain. Also included in this archive, however, are over 3 million books that are protected by copyright. The judge determined that 33,000 of them belong to the plaintiffs in the lawsuit.

According to the Order granting summary judgment, after scanning the books, Internet Archive made them publicly available online for free, without the permission of the copyright owners.

“Fair Use”

According to the Order, Internet Archive did not dispute that it violated copyright owners’ exclusive rights to reproduce the works, to make derivative works based on them, to distribute their works, to publicly perform them (Internet Archive offered a “read aloud” function on it website), and to display them (in this case, on a user’s browser.) In short, the Order determined that the operation violated all five of the exclusive rights of copyright owners protected by the United States Copyright Act (17 U.S.C. sec. 106).

Internet Archive asserted a “fair use” defense.

In previous cases involving massive operations to scan and digitize millions of books, Authors Guild v. Google., Inc. and Authors Guild v. HathiTrust, judicial analyses resulted in “fair use” determinations unfavorable to copyright owners. Internet Archive, of course, invited the judge to do the same thing here. The judge declined the invitation.

The judge distinguished this case from its predecessors by ruling that unlike the uses made of copyrighted works in those cases, the use in this case was not transformative. For example, Google had digitized the entire text of books in order to create a searchable index of books. “There is nothing transformative,” however, about copying and distributing the entire texts of books to the public, the judge declared.

The judge observed that Google reproduces and displays to the public only enough context surrounding the searched term to help a reader evaluate whether the book falls within the range of the reader’s interest. The Court of Appeals in Google had warned that “[i]f Plaintiff’s claim were based on Google’s converting their books into a digitized form and making that digitized version accessible to the public,” then the “claim [of copyright infringement] would be strong.”

The judge also determined that the alleged benefit to the public of having access to the entire text of books without having to pay for them “cannot outweigh the market harm to the publishers.”

Ultimately, the judge concluded that all four “fair use” factors (character and purpose of the use, nature of the work, amount and substantiality of the portion copied, and the effect on the market for the work) weighed against a finding of fair use.

What’s next?

Internet Archive apparently intends to appeal the decision. In the meantime, it appears that it will continue other kinds of digitized book services, such as interlibrary loans, citation linking, access for the print-disabled , text and data mining, purchasing e-books, and receiving and preserving books.

 

 

 

 

The CCB’s First 2 Determinations

The Copyright Claims Board (CCB) has issued its first two determinations. Here is what they were about and what the CCB did with them.

The United States Copyright Claims Board (CCB), an administrative tribunal that has been established for the purposes of resolving small copyright claims, began accepting case filings on June 16, 2022. Eight months later, it has issued its first two determinations. Here is a summary of them.

Flores v. Mitrakos, 22-CCB-0035

This was a DMCA case.

Michael Flores filed the claim against Michael Mitrakos. He alleged that Mitrakos filed a knowingly false takedown notice. The parties negotiated a settlement. On February 3, 2023 they submitted a joint request for a final determination dismissing the proceeding. It included a request to include findings that the respondent submitted false information in a takedown notice, resulting in the wrongful removal of the claimant’s material. The parties also agreed the respondent would inform Google that he was rescinding the takedown notice. The CCB incorporated the parties’ agreement into its final determination.

No damages were sought and the CCB did not award any.

Issued on February 15, 2023, this was the CCB’s first Final Determination. You can read it here.

Oppenheimer v. Prutton, 22-CCB-0045

While Flores v. Mitrakos was the first Final Determination the CCB issued, Oppenheimer v. Prutton was its first Final Determination on the merits. It is also the first copyright infringement case the Board has resolved.

The case involved alleged infringement of a copyright in a photograph. The facts, as reported in the CCB’s Final Determination, are as follows:

David G. Oppenheimer owns the copyright in a photograph he took of a federal building in Oakland, California. He registered the copyright in the photograph on July 29, 2017. On June 4, 2018, he discovered it was being displayed on the business website of attorney Douglas A. Prutton. Prutton admitted reproducing and displaying it without permission. He stated that his adult daughter found it on the Internet and put it on his website, in an effort to help improve his website, and that he removed it in 2019 upon receiving a letter from Oppenheimer objecting to the use. Oppenheimer sought an award of statutory damages for the unauthorized use of the photograph.

Prutton asserted two defenses: fair use and unclean hands.

The asserted defenses

Fair use

A person asserting fair use as a defense must address and discuss four factors: (1) purpose and character of the use; (2) nature of the work; (3) amount and substantiality of the portion copied; and (4) effect on the market for the work. Prutton only addressed the fourth factor. The failure to address the first three factors, the CCB ruled, was fatal to this defense.

Unclean hands

Prutton alleged that Oppenheimer was a copyright troll, earning revenue mostly from copyright litigation rather than from sales or licensing of his works. The CCB ruled that this is not a sufficient basis for a finding of unclean hands.

Damages

The CCB refused to reduce damages to $200 on the basis of “innocent infringement.” The CCB ruled that Prutton should have known the photograph was protected by copyright, emphasizing the fact that he was an attorney.

Oppenheimer requested statutory damages of $30,000. The CCB is limited by statute to awarding no more than $15,000 per work. The Board therefore construed it instead as a request for the maximum amount the Board can award. The CCB declined to award maximum damages.

While the amount of statutory damages does not have to be tied to the amount of actual damage, an award of statutory damages “must bear a plausible relationship to . . . actual damages.” Stockfood Am., Inc. v. Sequoia Wholesale Florist, Inc., 2021 WL 4597080, at *6 (N.D. Cal. June 22, 2021). Oppenheimer did not submit evidence of actual loss.

In the absence of any evidence of actual damage or harm, statutory damages will normally be set at $750 per work infringed. One member of the Board voted to do just that in this case. The other two members, however, believed a small increase from the minimum was justified for various reasons, such as that it was a commercial use and it had lasted for more than a year. The Board ultimately awarded Oppenheimer $1,000 statutory damages.

You can read the CCB’s Final Determination here.

Contact Thomas B. James, attorney

Need help with a CCB claim or defense? Contact Thomas B. James, Minnesota attorney.

Newly Public Domain Works 2023

Thousands of books, movies, songs and other creative works entered the public domain in the United States in 2023. Here is a partial list compiled by Cokato Minnesota attorney Thomas James.

Thousands of books, movies, songs and other creative works enter the public domain in the United States this year. Here is a partial list. (Click here for last year’s list).

Sherlock Holmes

Last year, it was Winnie the Pooh. This year, Sherlock Holmes officially enters the public domain. Pooh’s release from copyright protection sparked some creative uses of A. Milne’s fictional bear, from a comic strip in which Pooh Bear appears completely naked (i.e., without his red shirt on) to a slasher film called Winnie the Pooh: Blood and Honey, coming soon to a theater near you.

Sherlock Holmes and his sidekick, Dr. Watson, have actually been in the public domain for a long time, since Arthur Conan Doyle began publishing stories about them in the late nineteenth century. The copyrights in those works had already expired when Congress extended copyright terms in 1998. Legal controversies continued to arise, however, over which elements of those characters were still protected by copyright. New elements that were added in later stories potentially could still be protected by copyright even if the copyrights in previous stories in the series had expired. Now, however, the copyright in the last two Sherlock Holmes stories Doyle wrote have expired. Therefore, it appears that all elements of Doyle’s Sherlock Holmes stories are in the public domain now.

One can only imagine what creative uses people will make of the Holmes and Watson characters now that they are officially in the public domain, too.

Sherlock Holmes, public domain character, illustration in attorney Tom James article on public domain works

The Tower Treasure (Hardy Boys)

The Tower Treasure is the first book in the Hardy Boys series of mystery books that Franklin W. Dixon wrote. As of this year, it is in the public domain.

Again, however, only the elements of the characters and the story in that particular book are in the public domain now. Elements that appeared only in later volumes in the series might still be protected by copyright.

Steppenwolf

Herman Hesse’s Der Steppenwolf, in the original German, is now in the public domain. This version is to be distinguished from English translations of the work, which might still be protected by copyright as derivative works. It is also to be distinguished from the classic rock band by the same name. It is always important to distinguish between trademark and other kinds of uses of a term.

The Bridge of San Luis Rey

Thornton Wilder’s Pulitzer Prize winning novel about an investigation into the lives and deaths of people involved in the collapse of a Peruvian rope bridge has now entered the public domain.

Mosquitoes

William Faulkner’s satiric novel enters the public domain this year. This work is to be distinguished from the insect by the same name. The insect, annoyingly, has been in the public domain for centuries.

The Gangs of New York

Herbert Asbury’s The Gangs of New York is now in the public domain.

Amerika

Franz Kafka’s Amerika (also known as Lost In America) was published posthumously in 1927. It is now in the public domain.

The Jazz Singer

The Jazz Singer is a 1927 American film and one of the first to feature sound. Warner Brothers produced it using the Vitaphone sound-on-disc system and it featured six songs performed by Al Jolson. The short story on which it is based, “The Day of Atonement,” has already been in the public domain for some time. Now the film is, too.

The Battle of the Century

The Laurel and Hardy film, The Battle of the Century, is now in the public domain. Other Laurel and Hardy films, however, may still be protected by copyright.

Metropolis

Science fiction fans are most likely familiar with this 1927 German science fiction silent movie written by Thea von Harbou and Fritz Lang based on von Harbou’s 1925 novel. It was one of the first feature-length movies in that genre. The film is also famous for the phrase, “The Mediator Between the Head and the Hands Must Be the Heart.”

The Lodger

Alfred Hitchcock’s first thriller has entered the public domain.

“We All Scream for Ice Cream”

The song, “I Scream; You Scream; We All Scream for Ice Cream” is now in the public domain. Don’t worry if you uttered this phrase prior to January 1, 2023. Titles and short phrases are not protected by copyright. Now, it would be a different story if you’ve publicly performed the song, or published or recorded the song and/or the lyrics. Merely uttering those words, however, is not a crime.

“Puttin’ on the Ritz”

This song was originally written by Irving Berlin in 1927. Therefore it is now in the public domain. Taco released a performance of a cover version of this song in 1982. This version of the song made it all the way to number 53 in VH1’s 100 Greatest One-Hit Wonders of the 80’s special. Note that even if the original musical composition and lyrics are in the public domain now, recorded performances of the song by particular artists may still be protected. The copyrights in a musical composition and a recording of a performance of it are separate and distinct things. Don’t go copying Taco’s recorded performance of the song without permission. Please.

“My Blue Heaven”

This song, written by Walter Donaldson and George Whiting, is now in the public domain. It was used in the Ziegfeld Follies and was a big hit for crooner Gene Austin. It is not to be confused with the 1990 Steve Martin film with that name, which is still protected by copyright.

“The Best Things In Life Are Free”

This song was written by Buddy DeSylva, Lew Brown and Ray Henderson for the 1927 musical Good News. Many performers have covered it since then. The (ahem) good news is that it is now in the public domain.

Caveats

The works described in this blog post have entered the public domain under U.S. copyright law. The terms of copyrights in other countries are not the same. In the European Union, for example, Herman Hesse’s Der Steppenwolf is still protected by copyright as of January 1, 2023.

And again, remember that even if a work has entered the public domain, new elements first appearing in a derivative work based on it might still be protected by copyright.

The featured image in this article is “The Man with the Twisted Lip.” It appeared in The Strand Magazine in December, 1891. The original caption was “The pipe was still between his lips.” The drawing is in the public domain.

 

 

The Top Copyright Cases of 2022

Cokato Minnesota attorney Tom James (“The Cokato Copyright Attorney”) presents his annual list of the top copyright cases of the year.

My selections for the top copyright cases of the year.

“Dark Horse”

Marcus Gray had sued Katy Perry for copyright infringement, claiming that her “Dark Horse” song unlawfully copied portions of his song, “Joyful Noise.” The district court held that the disputed series of eight notes appearing in Gray’s song were not “particularly unique or rare,” and therefore were not protected against infringement. The Ninth Circuit Court of Appeals agreed, ruling that the series of eight notes was not sufficiently original and creative to receive copyright protection. Gray v. Hudson.

“Shape of You”

Across the pond, another music copyright infringement lawsuit was tossed. This one involved Ed Sheeran’s “Shape of You” and Sam Chokri’s “Oh Why.” In this case, the judge refused to infer from the similarities in the two songs that copyright infringement had occurred. The judge ruled that the portion of the song as to which copying had been claimed was “so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought out inspiration from other songs to come up with it.” Sheeran v. Chokri.

Instagram images

Another case out of California, this one involves a lawsuit filed by photographers against Instagram, alleging secondary copyright infringement. The photographers claim that Instagram’s embedding tool facilitates copyright infringement by users of the website. The district court judge dismissed the lawsuit, saying he was bound by the so-called “server test” the Ninth Circuit Court of Appeals announced in Perfect 10 v. Amazon. The server test says, in effect, that a website does not unlawfully “display” a copyrighted image if the image is stored on the original site’s server and is merely embedded in a search result that appears on a user’s screen. The photographers have an appeal pending before the Ninth Circuit Court of Appeals, asking the Court to reconsider its decision in Perfect 10. Courts in other jurisdictions have rejected Perfect 10 v. Amazon. The Court now has the option to either overrule Perfect 10 and allow the photographers’ lawsuit to proceed, or to re-affirm it, thereby creating a circuit split that could eventually lead to U.S. Supreme Court review. Hunley v. Instagram.

Tattoos

Is reproducing a copyrighted image in a tattoo fair use? That is a question at issue in a case pending in New York. Photographer Jeffrey Sedlik took a photograph of musician Miles Davis. Later, a tattoo artist allegedly traced a printout of it to create a stencil to transfer to human skin as a tattoo. Sedlik filed a copyright infringement lawsuit in the United States District Court for the Southern District of New York. Both parties moved for summary judgment. The judge analyzed the claims using the four “fair use” factors. Although the ultimate ruling was that fact issues remained to be decided by a jury, the court issued some important rulings in the course of making that ruling. In particular, the court ruled that affixing an image to skin is not necessarily a protected “transformative use” of an image. According to the court, it is for a jury to decide whether the image at issue in a particular case has been changed significantly enough to be considered “transformative.” It will be interesting to see how this case ultimately plays out, especially if it is still pending when the United States Supreme Court announces its decision in the Warhol case (See below). Sedlik v. Von Drachenberg.

Digital libraries

The book publishers’ lawsuit against Internet Archive, about which I wrote in a previous blog post, is still at the summary judgment stage. Its potential future implications are far-reaching. It is a copyright infringement lawsuit that book publishers filed in the federal district court for the Southern District of New York. The gravamen of the complaint is that Internet Archive allegedly has scanned over a million books and has made them freely available to the public via an Internet website without securing a license or permission from the copyright rights-holders. The case will test the “controlled digital lending” theory of fair use that was propounded in a white paper published by David R. Hansen and Kyle K. Courtney. They argued that distributing digitized copies of books by libraries should be regarded as the functional equivalent of lending physical copies of books to library patrons. Parties and amici have filed briefs in support of motions for summary judgment. An order on the motions is expected soon. The case is Hachette Book Group et al. v. Internet Archive.

Copyright registration

In Fourth Estate Public Benefits Corp. v. Wall-Street.com LLC, 139 S. Ct. 881, 889 (2019), the United States Supreme Court interpreted 17 U.S.C. § 411(a) to mean that a copyright owner cannot file an infringement claim in federal court without first securing either a registration certificate or an official notice of denial of registration from the Copyright Office. In an Illinois Law Review article, I argued that this imposes an unduly onerous burden on copyright owners and that Congress should amend the Copyright Act to abolish the requirement. Unfortunately, Congress has not done that. As I said in a previous blog post, Congressional inaction to correct a harsh law with potentially unjust consequences often leads to exercises of the judicial power of statutory interpretation to ameliorate those consequences. Unicolors v. H&M Hennes & Mauritz.

Unicolors, owner of the copyrights in various fabric designs, sued H&M Hennes & Mauritz (H&M), alleging copyright infringement. The jury rendered a verdict in favor of Unicolor, but H&M moved for judgment as a matter of law. H&M argued that Unicolors had failed to satisfy the requirement of obtaining a registration certificate prior to commencing suit. Although Unicolors had obtained a registration, H&M argued that the registration was not a valid one. Specifically, H&M argued that Unicolors had improperly applied to register multiple works with a single application. According to 37 CFR § 202.3(b)(4) (2020), a single application cannot be used to register multiple works unless all of the works in the application were included in the same unit of publication. The 31 fabric designs, H&M contended, had not all been first published at the same time in a single unit; some had been made available separately exclusively to certain customers. Therefore, they could not properly be registered together as a unit of publication.

The district court denied the motion, holding that a registration may be valid even if contains inaccurate information, provided the registrant did not know the information was inaccurate. The Ninth Circuit Court of Appeals reversed. The Court held that characterizing the group of works as a “unit of publication” in the registration application was a mistake of law, not a mistake of fact. The Court applied the traditional rule of thumb that ignorance of the law is not an excuse, in essence ruling that although a mistake of fact in a registration application might not invalidate the registration for purposes of the pre-litigation registration requirement, a mistake of law in an application will.

The United States Supreme Court granted certiorari. It reversed the Ninth Circuit Court’s reversal, thereby allowing the infringement verdict to stand notwithstanding the improper registration of the works together as a unit of publication rather than individually.

It is hazardous to read too much into the ruling in this case. Copyright claimants certainly should not interpret it to mean that they no longer need to bother with registering a copyright before trying to enforce it in court, or that they do not need to concern themselves with doing it properly. The pre-litigation registration requirement still stands (in the United States), and the Court has not held that it condones willful blindness of legal requirements. Copyright claimants ignore them at their peril.

Andy Warhol, Prince Transformer

I wrote about the Warhol case in a previous blog post. Basically, it is a copyright infringement case alleging that Lynn Goldsmith took a photograph of Prince in her studio and that Andy Warhol later based a series of silkscreen prints and pencil illustrations on it without a license or permission. The Andy Warhol Foundation sought a declaratory judgment that Warhol’s use of the photograph was “fair use.” Goldsmith counterclaimed for copyright infringement. The district court ruled in favor of Warhol and dismissed the photographer’s infringement claim. The Court of Appeals reversed, holding that the district court misapplied the four “fair use” factors and that the derivative works Warhol created do not qualify as fair use. The U.S. Supreme Court granted certiorari and heard oral arguments in October, 2022. A decision is expected next year.

Because this case gives the United States Supreme Court an opportunity to bring some clarity to the extremely murky “transformative use” area of copyright law, it is not only one of this year’s most important copyright cases, but it very likely will wind up being one of the most important copyright cases of all time. Andy Warhol Foundation for the Visual Arts v. Goldsmith.

The Philosophy of Copyright

The Internet has created an existential crisis for copyrights. Well, not really. It has impelled some people to consider, for the first time, the rationale for copyrights and the legal protection of them. That sounds a lot less dramatic and thrilling than “existential crisis,” though.

The Internet has created an existential crisis for copyrights. Well, not really. It has impelled some people to consider, for the first time, the rationale for copyrights and the legal protection of them. That sounds a lot less dramatic and thrilling than “existential crisis,” though.

The two frameworks

There are two basic frameworks for thinking about copyright law: deontological and utilitarian. Deontological approaches focus on rights and duties. Utilitarian approaches focus on the usefulness of copyrights in promoting or accomplishing some social good.

In simpler terms, we can think of copyrights as deserving of protection because respecting individual property rights is a moral good. That is the deontological way of thinking about them. On the other hand, we can think about protecting copyright in terms of how protecting copyrights benefits society – the greatest happiness for the greatest number of people. That is the utilitarian approach.

Generally speaking, European countries have tended toward the deontological, while the United States has tended toward the utilitarian. Droites de suite, the rights of an artist to attribution and integrity (the rights to be credited as author and to the preservation of the integrity of a created work) originated in Europe. The United States Constitution, by contrast, declares that the purpose of giving authors and inventors exclusive rights is simply “[t]o promote the Progress of Science and useful Arts,” (U.S. Const. Art. I, sec. 8(8)), a clearly utilitarian expression of the rationale for protecting intellectual property.

These are just generalities, of course. The amendment of the U.S. Copyright Act to include protection for the integrity and attribution rights of visual artists is an example of how the European approach has been “coming to America.” At the same time, European policy-makers are increasingly influenced by utilitarian ways of thinking.

The difference between the two approaches comes into sharp relief in the area of Fair Use. Viewing copyright as a personal right and infringement as a moral wrong, the concept of “fair use” is difficult to justify. Instead, resort is usually had to utilitarianism, the idea that infringement of individual rights can be justified if it makes a lot of people happier (the “public benefit” consideration in fair use analysis.)

The nature of the right

German law developed on a view of copyright as a personality right. Personality rights are recognized to some extent in American law, too. In the United States, however, only a person’s name, voice and likeness are considered to be elements of a person’s “personality.” The products of one’s mind, the works the person creates, are not. Those things are considered property rights in the United States.

Among those who view copyrights as property rights, there is a divide between those who view them as natural rights and those who view them solely as creatures of positive law. John Locke is the most celebrated proponent of the natural rights theory. Proponents of the positive law approach (as I call it, for purposes of this blog post) do not view authors’, artists’ and inventors’ rights as inalienable natural rights, but as rights the law will protect if and only to the extent that a government sees fit to create a law protecting them.

Proponents of the view that copyrights are solely the creatures of positive law, of course, measure the value of copyright protection in terms of public benefit. If, for example, they think that an Internet free from the restrictions of prohibitions against copyright infringement will make a great number of people happy (“public benefit”), then they will likely advocate for laws and interpretations of laws favoring a broad and expansive “fair use” exception to copyright protection.

The slack of utilitarian tension

Differences of opinion can arise among those who adopt the utilitarian approach to copyright because a variety of conflicting arguments about what will best promote the greatest happiness for the greatest number of people exist.

On one hand, there is the incentive theory expressed in the Intellectual Property Clause of the U.S. Constitution. The idea expressed there is that giving creators rights in their creations will ultimately lead to scientific and artistic progress. Protecting copyrights might not be enough to incentivize creativity but failing to protect them can be a disincentive to creative effort.

Conflicting with this, there is the argument that allowing more people to access and use other people’s ideas and inventions facilitates progress. This is the thought behind Open Source and other approaches focusing on the benefits of social collaboration in the development of ideas and inventions.

Conclusion

Anyhoobie, that is the nutshell version of the philosophy of copyright. Feel free to explore the subject in greater depth on your own. Philosophy can be fun, right? Right?

Who Am I?

That, too, is a great philosophical question. In my case, it is easy to answer. I am Cokato, Minnesota attorney Thomas James.

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