Literary Authors and Amazon.com

First it was Google; now its Amazon.com that literary authors are kvetching about. An article in Thursday's (September 29) Wall Street Journal discusses complaints authors have about the fact that amazon.com offers books for sale at different prices: list price, new books at lower prices, and used books. Authors and literary agent are quoted as saying they think they are being deprived of royalties and they want their share! It is really no fun to write about copyright owners acting like Luddite pigs, and being in private practice it has a definite commercial downside; I would much rather praise Caesar. But, things are as they are, and I have always opted for honesty over craven brown-nosing and over self-imposed censorship. I hope my twins forgive me.

I buy around 150 books a year. This week I bought three brand new ones: a $160, 245 page book on copyright and printing privileges in Venice circa 1500; a $55 book about prints in the same era; and a $20 book accompanying the print exhibit I blogged about a few days ago. I also borrowed three books through Inter Library Loan. I may end up buying one; the other two (by historian Carl L. Becker) are out of print.

I buy the vast majority of my books through amazon.com and pay alot of attention to the choices they offer for the book I am interested in. Choice is bad, apparently. I should have to pay list price and I shouldn't be able to resell it (at least through amazon.com) without amazon.com sending a check to the publisher, who will pass 100% through to the author, at least that is what a literary agent is quoted in the article as advocating.

Sad, is the only polite word I can think of for literary authors' utter failure to embrace an extremely beneficial system. The first sale doctrine was judicially created by the Supreme Court pre-1909 Copyright Act in order to prevent misuse of copyright to maintain list price. Some things truly never change.

Common Law Countries and Originality

The concept of originality is of obvious central importance in copyright law, but does it mean the same thing everywhere? On March 4, 2004, the Supreme Court of Canada handed down Law Society of Upper Canada v. CCH Canadian Limited, a comprehensive, comparative look at originality. I confess to being utterly baffled by this opinion, and I say this with trepidation, not wanting to sound like a snooty American.

In a 2002 Copyright Society article by Daniel (not Ricky) Gervais, "Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law." Professor Gervais also discusses other countries's approaches to originality, but is the CCH opinion I want to mention, because it manifests such a questionable grasp of U.S. law and logic. (See also Professor Gervais' post-CCH article, "Canadian Copyright Law Post CCH.).

The dispute in CCH concerned a law library's photocopying and fax transmissions of legal materials for which copyright was asserted in headnotes, case summaries, topical indexes, and a compilation of judicial opinions. I have two central beefs with the opinion's discussion of originality, neither of which has to do with the merits of the particular dispute.

First, the court noted a number of different interpretations of the term "original," but stated nevertheless that the "plain meaning of the word 'original' suggests at least some intellectual effort, as is necessarily involved in the exercise of skill and judgment." The Court cited a dictionary for this position. However one comes out on plain meaning in statutory interpretation and the use of legislative history, it is very hard to see how a term like "original," which is undefined, the subject of quite different legal interpretations in other countries, and which is the subject of wildly different non-legal meanings, could ever be regarded as having a "plain" meaning.

The second beef I have is with the Court's conclusion that the "correct approach falls between [two] extremes," those extremes being sweat of the brow and the Feist standard. I wouldn't describe Feist as an extreme and certainly not in relation to sweat of the brow: there is no logical connection, no polar relationship, no ying-yang between the two. They represent very different approaches to originality but this doesn't mean they are points on the same line much less at opposite poles. Feist is a very mainstream, modest approach; it is not at anyone's extreme of what originality could mean, like novel or non-obvious, for example.

It is a common enough debating trope to describe yourself as being in the middle, as if you are somehow the reasonable one by your own self-identification, and that is what seemed to happen here. Yet, the approach taken seems little if any different from Feist: to be original under Canadian law, the Court held that a work "must be more than a mere copy of another work. At the same time, it need not be creative in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one's knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort."

Despite the verbose nature of this, I doubt Feist would disagree. Why not just say so then?

Subway Maps and Copyright

One of my favorite blogs, Corante, had a posting about cease-and-desist letters sent by the NY Metropolitan Transit Authority and BART in the SF Bay Area over iPod downloading of subway maps. This is very disturbing. Those agencies have much more pressing, public safety and service issues they should be worrying about than vigorously asserting copyright in subway maps. And if their concern is that the iPod maps were inaccurate, they should have offered to provide a free, up-to-date file. The only purpose for such maps in that format is to inform the public about which trains to take. Copyright is both unnecessary and inappropriate. The agencies' actions are shameful.

But are they legally sound? Maps have been protected since the 1790 Copyright Act. The basis for protection in some of the early decisions is unclear: was it sweat of the brow, as a factual compilation, as a visual work, or something else? See e.g., Perris v. Hexamer, 99 U.S. 674 (1878); Blunt v. Patten, 3 F. Cas. 762 (C.C.S.D.N.Y. 1828) and on maps in general in this period, J.B. Harley, The New Nature Maps: Essays in the History of Cartography (Paul Laxton ed. 2001); John Rennie Short, Representing the Republic: Mapping the United States (1600-1900) (2001). Compendium II of Copyright Office Practices Sec. 509.01 (1984) refers to drawings or pictorial representations "based on original surveying or carto-graphic field work," but this final requirement seems inappropriate after Feist. More persuasive is Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992), which based protection on the inherent pictorial nature of the map.

A particularly apposite opinion is Streetwise Maps, Inc. v. Vandam, Inc., 159 F.3d 739 (2d Cir. 1998), which involved to a glossy map of New York City. And then there is County of Suffolk, N.Y. v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001), which injected a new incentives based test for protection. Under that approach, there is no need for the incentive of copyright for the transit authorities to publish the subway maps; they have to anyway, if not by law, by necessity.

Unlike Section 105 of title 17, which bars protection for works of the United States government, there is no bar on state governments (or subdivisions or corporations owned by them) owning copyright, although states are free to ban protection: given states lack vigorous assertion of sovereign immunity, common decency would require them to disavow copyright. There is no statutory bar to protection for original subway maps, therefore. There should, though, be a common sense bar but that, like common decency, is apparently lacking.

Albrecht Dürer and Copyright

Albrecht Dürer may lay claim to the most aggressive copyright notice ever used, declaring in 1511 in a colophon to the Life of the Virgin:

Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximillian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger.

What got him so angry? The answer is seen in a current show "Paper Musuems: the Reproductive Print in Europe, 1500-1800," at New York University's Grey Art Gallery through December 3d, reviewed in an excellent, Friday New York Times article by Grace Glueck.

Dürer was angry at Marcantonio Raimondi, who had made a line-for-line copy of Dürer's work. Dürer obtained an injunction, but only against the use of Albrecht's well-known "AD"insignia. Raimondi's prints sold for the same price as Dürer's and with Dürer's insignia could easily fool the public as to the source of the print, a problem currently dealt with in Section 43(a) of the Lanham Act. Raimondi was not just a scoundrel; he worked with famous artists on creating authorized prints. He and other, less-skilled print makers who sold their mass-produced versions served to acquaint the general public with works that were otherwise limited to the wealthy, including the church.

Among the excellent sources of information on Dürer's travails (in addition to the catalog essay in the NYU show by Alexandra Korey) is a 215 page book I just read by Lisa Pon, published in February 2004 by Yale University Press called "Raphael, Dürer, and Marcantonio Raimondi: Copying and the Italian Renaissance Print" as well as the September 2004 issue of the Japanese Journal "Studies in Western Art," entitled "Originality and Reproduction" which contains numerous very interesting and probing articles on the copying of Western art throughout the ages.

The NYU show raises a number of important points about what was considered an original and what is now considered a derivative work; many prints made creative changes in the works, and it should be noted that it was quite late in the copyright game that such alterations were deemed infringing, in the U.S. perhaps as late as 1909: the English common law doctrine of "fair abridgment" thrived in the U.S. well into the mid-to late 1800s.

Small Beauty

The saying "Less is More" was popularized by architect Mies van der Rohe (but found in an 1855 poem by Robert Browning), and scoffed at by architect Robert Venturi, who quipped "Less is a Bore." The general legal doctrine of de minimis non curat lex bars copyright protection where the material for which protection is claimed fails to embody a minimal quantum of creative authorship. In applying this doctrine, the Copyright Office refuses registration for “words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.” Last week, Judge Sprizzo of the SDNY upheld the Office’s refusal to register the Coach luggage letter C design.

Too much can be made of the term “short” though: since originality involves qualitative as well as quantitative considerations, no quantitative guidelines can be given for identifying the line between not enough and just enough creativity. In addition to obvious examples such as haiku with its concentrated poetic pattern of 5-7-5 morea (roughly syllables), brevity may be a sign of greater, rather than less, creativity. Anton Webern, who along with his mentor Arnold Schoenbeg and friend Alban Berg are frequently referred to as the “Second Viennese School”, composed severely spare music. Webern’s philosophy, set forth in a monograph “The Path to New Music,” is best seen in his definition of Art as “the ability to present an idea in its simplest, clearest, that means most comprehensible form.” This didn’t mean Webern’s ideas were simple – his music is the most rigorous devoted to Schoenberg’s 12-tone approach – rather, it means that Webern aimed for transparency in the expression of his idea. For example, Webern’s Six Bagatelles for String Quartet (1911/1913), each take up only a single page, and when performed in their entirety, last barely three minutes. Schoenberg wrote a preface to score that sums the matter up well:

Though the brevity of these pieces is a persuasive advocate for them, on the other hand that very brevity itself requires an advocate. Consider what moderation is required to express oneself so briefly. You can stretch every glance out in a poem, every sigh into a novel. But to express a novel in a single gesture, a joy in a breath – such concentration can only be present in proportion to the absence of self-pity.

Before we dismiss out of hand brief works, we should be sure about their nature.

Judge Boudin, Per Stirpes, and An Authorization Right

Michael Boudin is Chief Judge of the U.S. Court of Appeals for the First Circuit. He clerked for the legendary Second Circuit Judge Henry Friendly. He and Judge Richard Posner constitute the Federal Circuit Judges Cat Society. Judge Boudin is a wonderful, generous, open person,with a brilliant intellect and very readable opinion style. On Friday, he released an important copyright opinion, Venegas-Hernandez v. Asociacion de Compositores y Editores de Musica Latino Americana. Judge Boudin's opinions are concise like Judge Posner's and like Judge Posner's, they have a helpful habit of invisibly leading the reader along the path of his thinking, and what great thinking it is.

Two aspects of the most recent opinion bear mention. The first is a technical but important issue of statutory interpretation: Section 304(a) bumps wills and in a compulsory bequest gives the deceased author's renewal right to designated statutory heirs, in order. The first class is "widow and children." (The statute says widower too, but that is statistically rare). The question, where there is both a widow and children, is how they take: do they take per capita (a widow and two children would each take a third) or per stirpes (the widow takes 50% and the two children 25% each)?

The Copyright Office favors per capita, but a divided Sixth Circuit went with per stirpes, BMI v. Roger Miller Music, Inc., 396 F.3d 762 (6th Cir. 2005), as does Judge Boudin and his court, but only after a different review than that taken by the Sixth Circuit, given that he entertained the possibility of looking at state law for guidance. I favor the per capita approach, but both opinions are essential reading (including Judge Daughtrey's dissent in the BMI case).

The other aspect of Judge Boudin's opinion that merits review is his musing about whether there exists a separate authorization right such that that right may be violated where there is no direct infringement. After noting there is a plain language argument in favor of the right, he ultimately concludes otherwise, based, correctly, I believe, on the purpose of the "authorization" language being to statutorily recognize the common law doctrine of contributory infringement which does have a direct infringer requirement.

Broadcasters and a WIPO Treaty

I have been watching the "Yes Men," a documentary about two guys who spoof on the WTO, mostly via invitations sent to a domain site they own http://www.gatt.org/. The WIPO is like the WTO, at least by also having a W and an O at the beginning and end of its name, and by being concerned with intellectual property. WIPO not only administers the Berne Convention and the WCT and WPPT treaties, it is instrumental in their formulation and negotiation. Most recently, broadcasters have been pushing for a new treaty of their own. On September 16th, the Copyright Office held a meeting with some NGOs about this. At the end of September, there is a WIPO General Assembly at which the issue of a possible diplomatic conference toward a new treaty will be taken up.

Here is an August 24, 2005 Document prepared by the WIPO Secretariat summarizing broadly previous discussions. Here is an April 2005 working paper, and the most recent public draft, from May 2005. Here is a link to CPTech which has a number of links to documents, with a not altogether accurate review of the current state of the law. http://www.cptech.org/ip/wipo/wipo-casting.html

Broadcasters do enjoy in the U.S. a copyright in their broadcast day, the compilation of a full-day programming, as well as in the shows they produce. Since 1992, they also possess "retransmission consent" in Section 325(b)(1) of the Communications Act. Retransmission consent is a copyright right not passed under the Copyright Act and over the objection of the House Judiciary Committee. This right gives broadcasters the ability (if they have the economic stroke) to "just say no" to cable companies. (Larry Tisch then at CBS thought this would be a huge money machine; it isn't).

Broadcasters internationally aren't viewed as copyright owners and thus aren't covered by the WCT or WPPT, although they are covered by the 1961 Rome Convention, to which the U.S. does not adhere. The U.S. is very active in this new effort and of signal importance (pun intended) is whether the new right (if there is one) should cover webcasting and have DMCA like Chapter 12 provisions.

The time to get involved is now, not later, wherever you come out on the issue. Recall that early proposals for what became the DMCA Chapter 1200 provisions floundered domestically until the decision was made by the Administration to go the back-door international treaty route and use that obligation as leverage for domestic changes. That approach was not used during Berne adherence but only because then House Judiciary IP chair Bob Kastenmeier made clear that Congress had a very important role to play. One hopes that is the case here.

Remedies in Architecture Cases

I know I am "building" up posts on architecture, but I came across an opinion that is so wacky it shouldn't go without comment; and, it raises issues not previously discussed: remedies in architecture cases. The opinion is Palmetto Builders and Designers, Inc. v. Unireal, Inc., 342 F. Supp.2d 468, 473 (D.S.C. 2004), and the relevant part of it is:

"[B]ecause the constructed homes constitute infringing copies of the Plaintiffs copyrighted works, they cannot be lawfully resold without the Plaintiff's permission. Under 17 U.S.C. § 106(3) a copyrighted article may be sold only by the owner of the copyright. Any sale by another party without the owner's permission constitutes an act of infringement. The only exception to this rule exists under 17 U.S.C. § 109(a) which permits the resale of a copyrighted article by a buyer who received a valid non-infringing copy of the work. This is known as the "first sale" doctrine. An infringing copy, therefore, does not fit within the "first sale" doctrine embodied in 17 U.S.C. § 109(a) and cannot be resold without the resale causing an additional act of infringement. The homeowners, the Nickols and Kellers, own houses that are infringing copies. Thus, without express permission by the Plaintiff, any sale of the houses by them - or by any subsequent owner - will constitute an act of infringement for which the copyright owner could bring suit. To fully enforce its rights, the copyright owner would have to bring a new lawsuit every time one of the houses was sold. One of the reasons for equitable relief is to prevent such a multiplicity of lawsuits. For this reason, too, the injunction is not only appropriate but indeed necessary."

There is a heap wrong with this. The suit was for infringement of architectural plans, not the architectural work. Copyright in architectural plans does not give one the right to enjoin construction of a building, ever. The reasons for this hearken back to Baker v. Selden and are also found in Section 113(b). Congress reaffirmed this view in the 1988 Berne implementing legislation committee reports, see S. Rep. No. 352, 100th Cong., 2d Sess. 8 (1988); H.R. Rep. No. 609, 100th Cong., 2d Sess. 50-51 (1988). For the same reasons, monetary relief for infringement of the plans is limited to things like lost license fees; it does not include lost profits from the construction of the building nor defendant's profits from the sale of an infringing structure. If you want those type of remedies you have to sue for infringement of the architectural work.

So the first error in Palmetto is granting relief for infringement of plans that could be granted, if at all, only for infringement of the architectural work. The other error, laughable were it not true (or perhaps even more laughable because it is true), was the court's reference to the hapless homeowners not being able to resell their homes. Resale, the court thought, would be a distribution. Huh? These weren't mobile homes, carted off their mooring and taken to a different site. Distribution of an infringing architectural structure (as compared to the copy of it) is impossible.

Borges, History, and Copyright

My two favorite writers are Kafka and Borges. There was a time I could read Kafka fairly well in the original, but never Borges, which I have always regretted, since while Kafka in the original adds (for me) a certain baroque dimension, I have always imagined (or is it the other Patry?) that Borges in the original would add a beauty and set of associations that will always elude me. In yesterday's blog, I had in mind too Borges 1939 short story "Pierre Menard, Author of the Quixote." In this story, Borges begins by describing Menard's oeuvre (after first noting Mme Henri Bachelier's "deceitful catalog in a certain newspaper, whose Protestant leanings are surely no secret"). There are 19 works listed in chronological order, including, Borges writes: "a diatribe against Paul Valery, in Jacques Reboul's Feuilles pour la suppression de la realite (which diatribe, I might add parenthetically, states the exact reverse of Menard's true opinion of Valery; Valery understood this, and the two men's friendship was never imperiled").

Borges spends most of his time attacking the "insinuation" that Menard devoted his life to writing a "contemporary Quixote." Borges states that "Pierre Menard did not want to compose another Quixote, which surely is easy enough - he wanted to compose the Quixiote. Nor, surely, need one be obliged to note that his goal was never a mechanical transcription of the original; he had no intention of copying it. His admirable ambition was to produce a number of pages which coincided - word for word and line for line - with those of Miguel de Cervantes."

This process would, of course, far exceed that mentioned by Learned Hand in independent creation of Keats' Ode on a Grecian Urn. Menard never finished, but what he did finish was line by line identical to Cervantes' work. Yet, the narrator opines that "Menard's fragmentary Quixote is more subtle than Cervantes'." One passage is quoted from Cervantes:

"truth, whose mother is history, rival of time, depository of deeds, witness to the past,
exemplar and adviser to the present, and the future's counselor."

Here is Menard's version:

"truth, whose mother is history, rival of time, depository of deeds, witness to the past,
exemplar and adviser to the present, and the future's counselor."


Although the passage is identical in both, the narrator declares that Cervantes' version is "mere rhetorical praise of history," while with Menard's, he states: "History, mother of truth! - the idea is staggering. Menard, a contemporary of William James, defines history not as delving into reality but as the very fount of reality. Historical truth, for Menard is not 'what happened'; it is what we believe happened. The final phrases - exemplar and adviser to the present, and the future's counselor - are brazenly pragmatic."

Borges here pokes fun at many things, including some of the theories of history noted in yesterday's blog, as well was literary criticism. But in a turn of events that Borges himself no doubt anticipated, a pompous, tendentious, unreadable, post-structuralist "discussion" of the Menard short story by William Plank inadvertently makes best another of Borges' points in that story: "there is no intellectual exercise that is not ultimately pointless."

History and Copyright

In Feist, the Supreme Court dealt with what it viewed as the fact versus compilation-of-fact dichotomy: facts aren't protectible, but compilations can be. But why should compilations of fact be protectible? Why should the aggregation of 100 unprotectible elements magically be transformed into something different that the parts, Justice O'Connor wondered. How, in other words, is the sum of the parts intrinsically different from each individual part, no matter how many individual parts there are?

The Court answered that question by examining the nature of each side of the equation. As regards facts, they weren't protectible because no one was their author; they are, we are told, objectively existent, a priori. Compilations of facts, on the author hand, can be protectible if there is an original selection, coordination, or arrangement: one can be the author of a compilation because it isn't a priori. This left open the question of what an original selection, coordination, or arrangement is, but given the alphabetical arrangement in Feist, it is no surprise the Court focused on selection as the key element of originality, the exercise of judgment in what to select (the 100 best vegetarian restaurants in Houston, for example).

Claims of copyright in historical works has suffered from courts' reflexive treatment of historical "facts" as facts like addresses in white pages. Historical facts exist a priori, are discovered, and can't be authored, ergo, they can be copied at will. But what is a historical fact? There are events that are documented or otherwise not disputed: that the U.S. Senate's confirmation hearings of John Roberts to replace Chief Justice Rehnquist began today. But those types of facts are what Macaulay called the "dross of history," things historians don't see as their raison d'etre, favoring instead narration as the real conveyor of meaning, a view espoused in the 1970s by American bad-boy historian Hayden White.

True enough in the past some historians referred to "facts, facts, facts - which carry within themselves their lesson and their philosophy" (address of Henri Houssaye at 1900 First International Congress of Historians in Paris), but others, like Frederick Turner 10 years later believed that facts were part of the times and could only be seen as "true" with considerable distance. Carl Becker, in 1958, believed that it is "almost impossible" to distinguish facts from theory, and three years later, English bad-boy historian E.H. Carr wrote that the "facts of history never come to us 'pure' since they do not and cannot exist in a pure form: they are always refracted through the mind of the recorder." Still others, like Paul Conkin and Michael Stanford regarded facts as something like a communal judgment, something a majority of historians agreed upon.

In the 1990s, some historians like Keith Jenkins, viewed facts as "only a description of things that happened, and which, therefore, cannot have an intrinsic meaning." Although there was a phase in which the influence of the "linguistic turn," Roland Barthes and post-structuralists threatened to undermine the legitimacy of the historical exercise altogether, the field seems fragmented today, with no consensus at all, a fact that doesn't seem to faze courts in copyright cases.

Does the Substantial Similarity Analysis Make Sense?

That are a number of axioms in copyright, by which I mean foundational principles. One is that infringement of the reproduction right occurs when there has been unauthorized copying of a material portion of a protected work. There are many different formulations of this principle, sometimes expressed as tests, and the principle is frequently broken down into smaller elements, like access and copying: there must be access to the work, copying from it, and then the copying must be substantial. Sometimes these divisions have importance for things like the use of expert witnesses: such witnesses are permitted generally to establish copying, but are not permitted at the substantial similarity stage. That at least has been the custom since Arnstein v. Porter, although it was breached in Computer Associates v. Altai, which permitted experts at the substantial similarity stage, or at least what purported to be that stage.

Sometimes, substantial similarity gets a confusing double duty, as when it is said there has to be access and substantial similarity. The late Professor Alan Latman proposed "probative similarity" to avoid the confusion inherent in such a formulation: there would be access, probative similarity to establish copying, and substantial similarity for the ultimate infringement. That's something of an improvement, but not a lot. All one really needs are access (since you can't copy something you don't have access to), copying (of anything, even unprotectible material like a phony address), and substantial similarity, this last term being merely a metaphor for the legal conclusion that plaintiff wins because defendant took too much protectible stuff.

The substantial similarity test has also been refined when plaintiff's work has a considerable amount of unprotectible material. Then, instead of comparing the two works from the perspective of the ordinary observer (the copyright equivalent of the reasonable person in general tort law), the "more discerning observer" is used, by which the same trier of fact manages the amazing trick of factoring out unprotectible material while still comparing the protectible elements as a whole. The purpose of this heightened scrutiny is two-fold: to avoid giving the copyright owner indirect control over unprotectible elements, while not ignoring any originality in a unified whole that nevertheless has unprotectible elements.

Having attempted to be a more discerning observer (and, I would like to think with success) in comparing two expensive rugs, I understand theoretically why it should be done, and perhaps how. But, is it really possible and if so how can be validate the exercise? Should such copyright determinations take into account social science research into how people perceive simlarities and dissimilarities? Do people generally perceive similarities more readily or dissimilarities? Are people influenced by how long they look at the items? What if they are told to focus on or not to focus on certain things? Are there some types of similarities/dissimilarities that people perceive more easily than others? And, finally (or first) what does it mean to even say something is "similar"?

Professor Arthur Markman at the University of Texas has been doing very interesting work on similarity and cognition, both through his writings and through his Similarity and Cognition lab. Right now, copyright law exists at the crude level of Potter Stewart's "I know it when I see it." He may have known it, but are the rest of us sure, especially when wearing our more discerning observer goggles? Is it possible to put copyright on an empirically more sound basis or is the Potter Stewart approach good enough for government work, as the saying goes?

Apres Grokster

The cases construing Grokster are beginning to trickle out. One from the Northern District of Illinois, involving the Monotype Corporation and Bitstream, Inc., is interesting because the direct infringement claim was adjudicated on April 21, 2005 (pre-Grokster)(2005 U.S. Dist. LEXIS 7410), while the third party liability claim was adjudicated on July 12, 2005, apres Grokster (276 F. Supp.2d 877). At issue in Monotype was Bitstream's "True Doc" software program, which includes a "Character Shape Recorder" feature. That feature's purpose is to create a file format which, when transmitted with a document, permits the replication of typeface designs in the document regardless of whether the recipient of the document has those designs on his or her computer.

There is no copyright in typeface designs even though they qualify as original works of authorship because Congress, in 1976, chose not to extend protection. (This is found in the House Committee report, so if you refuse to look at legislative history, you'll miss it.). The reason for the exclusion was opposition from book publishers and authors who were concerned about injunctions and damages that might obtain where, unbeknownst to them, a printer used what turned out to be an infringing typeface design. A mandamus action against the Register of Copyrights was rejected by the Fourth Circuit in 1978. (Eltra v. Ringer).

But this doesn't mean that computer programs, like Adobe's, for example, that generate font designs when printing out documents, aren't protectible as a set of statements or instructions; they are, if original. For awhile in 1990 or 1991, the Copyright Office had a policy of requiring registrants of computer programs to disclaim the typeface, but after a real battle in which I and the "liberals" (read everyone other than the then General Counsel) prevailed, the policy was abandoned in favor of an amendment to the Office's regulations which state that "typeface qua typeface" is not protectible. And that gets us to Monotype v. Bitstream, where the claim, at least purportedly, was in the software, not the typeface.

In the April opinion, the court noted that Monotype did not present any evidence that Bitstream's "Character Shape Recorder" copied any of Monotype's programs, but did any of Bitstream's end-users? Monotype pointed to web tutorials; Bitstream claimed these uses were fair uses and that its product had substantial noninfringing uses. First of all, True Doc was used primarily with Bitstream's own fonts and those of others licensed to Bitstream. Monotype pointed to advertising by Bitstream that the program could be used with "any" fonts. Being in the Seventh Circuit, Aimster was the standard employed, and under that standard Judge St. Eve found a genuine issue of material fact on contributory infringement, but none on vicarious liability, which she decided in favor of Bitstream.

Fast forward to July, apres Grokster. The court found no evidence of direct infringement, which could have ended the matter, but Judge St. Eve went on to discuss the contributory infringement claim, relying on a mix of Grokster and Aimster. The number of noninfringing uses were found to vastly outweigh any potential infringing uses, and with an absence of any evidence of encouragement of infringement. Bitstream was found to have made some efforts to reduce potential infringement. End result: no contributory infringement.

Next up, the new Grokster "intentional inducement" theory, as it was described by Judge St. Eve; the theory was found not to apply to the facts because of the lack of any knowledge of any infringement, much less "purposeful, culpable expression and conduct." The advertisements might have qualified, but were construed as referring to Bitstream's own fonts and those of its licensees. Grokster was distinguished as involving a "targeted audience"where defendants took no steps to mitigate infringement and where defendant benefited from the infringement.

Taxonomies, Compilations, and Categorization

The Sixth Circuit has become quite active in copyright cases in the last few years, now and then even issuing good opinions. One is ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700 (6th Cir. 2005). The case involved a compilation of parts numbers and follows on the heels of Judge Alioto's outstanding en banc opinion in Southco, Inc. . v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004).

The part of ATC Distribution Group that interests me is not the compilation issue, but instead the court's review of Judge Easterbrook's opinion in American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir. 1997), in particular Judge Easterbrook's conclusion that the work in question there was not a compilation, but a taxonomy, and as such protected. The ATC Distribution Group panel expressed, understandably, some confusion about the actual basis for the ADA opinion, and for good reason: the holding is mushy on whether the protection was for numbers, the scheme of the numbers, or the descriptors that went along with the numbers, or only all three in combination.

But what bugs me is the trope of calling the work a taxonomy in the first place. The work in ADA (which my dentist let me look at over this last weekend) is a "Code on Dental Procedures and Nomenclature." Note that the copyright owner called the work a code, not a taxonomy. It is used to standardize codes (numbers) submitted for insurance claims, for those fortunate enough to have worthwhile and affordable dental insurance (surely an elite group).

The ADA surveyed all dental procedures and broke them down into twelve service groups and then divided those groups further into subgroups. For example, D2000-D2999 is for "Restorative" services; within that 02110 is "Amalgam - one surface, primary;" 02120 is "Amalgam - two surfaces, primary." The Federal government has made it a standard for submitting claims under a federal insurance act and the Preface to the Code states that there is nothing to interpret; one is to apply the Code as is.

The book as a whole in which the Code appears is clearly protectible, but defendant, which had a competing but very similar code, cleverly submitted just the numbers for registration, which the Copyright Office refused. And that, for me states the issue clearly: the question is not, as Judge Easterbrook stated it, whether a taxonomy is protectible, but rather whether defendant, who copied numbers from a protectible book, committed infringement. The trope (from the Greek "tropos," "turn") is, therefore, seeking to turn the discussion away from the true issue presented by calling the work something else with the intent that we analyze it differently because it has a different name.

But I think Judge Easterbrook even misdefined plaintiff's work. He defined a taxonomy as "a way of describing items in a body of knowledge or practice; it is not a collection or compilation of bits and pieces of 'reality.'" Really? The ADA Code described nothing; it merely listed all existing dental procedures according to a classification scheme, with the sole purpose of putting them in a mutually exclusive and exhaustive series of classes.

"Taxonomy" is derived from the Greek words "taxis" (order) and "nomos" (law). An authoritative study of taxonomies states: "A taxonomy begins empirically, rather than conceptually, with the goal of classifying cases accorded to their measured similarity on observed variables." If we use taxonomy in this sense, it is unclear how authorship, if any, in the ADA's "taxonomy" differs from authorship, if any, in a compilation. Which is why both I and the Sixth Circuit are confused.

Should Obscene Works Be Protected?

Whether works deemed obscene should receive copyright protection periodically receives attention. In the SDNY, then Judge Martin refused to grant a preliminary injunction and a pretrial impoundment and seizure order for movies he believed to be obscene writing, "Given the clearly criminal nature of plaintiff's operations, it is self-evident that the Court should not use its equitable powers to come to the aid of plaintiffs and should invoke the doctrine of clean hands and leave the parties where it finds them," Devils Films, Inc. v. Nectar Video Corp., 29 F. Supp.2d 174, 175 (S.D.N.Y. 1998). More recently, Judge Baer of the same court took a different view in Nova Products, Inc. v. Kisma Video, Inc., 2004 U.S. Dist. LEXIS 2471 (S.D.N.Y. Dec. 1, 2004), noting that in Manhattan at least hard-core pornography is not patently offensive under "contemporary community standards."

Given the community standards approach to obscenity, an obscenity defense to infringement (the issue in Nova) or as a bar to equitable relief (the issue in Devils Films) is problematic as a practical matter. But what about as a legal matter? When Judge Martin said the matter was "self-evident," that was a good tip off it was anything but that. All copyright mavens know the Supreme Court's Bleistein opinion, but may not know that the lower courts had barred protection on grounds of immorality, the posters depicting women in tights with bare arms, designed to lure men to the circus. Other courts denied protection to song lyrics. Dramatic compositions, especially those including dance, were a favorite target of disapproval; as late as a 1963 New York state court decision denied common law protection to choreography that had too suggestive moves.

The Copyright Office has had a varied history in the matter, rejecting some claims in the 1930s. In 1941 Register Bouve stated this policy explicitly in his 1941 Annual Report. This may have been in reaction to a registration made in 1940 by Assistant Register Howell who noted that "to the pure of heart all things are pure." Beginning in 1954 (Ruling No. 32), the Office stated that while the Office does not ordinarily examine for content, if a work was deemed obscene the matter would be referred to the Justice Department for possible prosecution with the registration placed on hold. Register Kaminstein was, however, particularly concerned about avoiding the Office in such matters and despite pressure from the Attorney General and the Post Office (you had to mail in deposits, after all), and perhaps bolstered by the Supreme Court's 1957 opinion in Roth v. United States, 354 U.S. 476, he registered Lady Chatterly's Lover in 1959. An Attorney General opinion in 1959 noted the "substantial problems" the Office would face in making ad hoc decisions. In 1967, a Supplementary Practice was inserted into Compendium I along the lines of the 1954 ruling. Compendium II (Sec. 108.09), states that
the Office doesn't examine for content, but doesn't contain any provision for referral to the Justice Department.

There is one exception, apparently. While I was a Policy Planning Advisor the issue of registration of child pornography came up. Under pressure form then Senator Dan Qualye (I recall), the Register announced he had a policy (that people could view in the Public Office I never managed to be able to get a copy of the policy) and the policy was apparently the same as the 1954 ruling, referral for possible prosecution. But legality aside, does pornography promote the progress of science? Do we make such determinations on an individual basis, a class basis, or a systemic basis (the Copyright Act as a whole). The last possibility has been the more recent approach, but child pornography perhaps pushes the question in other directions.

Copyright Office Appeals Process

Register of Copyright Mary Beth Peters, with whom I worked as a fellow Policy Planning Advisor from 1988 to 1992, has made a number of very important improvements in the operation of the Copyright Office. For example, she abandoned the Office's former refusal to accept for registration a work that would be registrable but for the fact that a prior design patent had been obtained. And she instituted short form registration to simplify matters. Another improvement is the institution of a formal internal appellate procedure for refusals to register claims, explained most recently in a December 28, 2004 Final Rule in the Federal Register and placed (although not yet, apparently from the Office's website) in 37 C.F.R. Section 202.5. The Office doesn't call these appeals, but rather "requests for reconsideration," but because it is shorter I will call them "appeals." The history of such appeals is spotty.

In the days before there was a Copyright Office, occasional appeals from a refusal to register by the Librarian of Congress were taken to Congress's Joint Committee on the Library, which held oral argument. In the mid 1930s, within the Copyright Office, there was a "Revisory Board" consisting of three members who issued written opinions on a wide variety of topics. My favorite is one where two members of the panel thought the work of graphic art depicted a typical Pennsylvania Dutch holiday scene but the third deemed it obscene. Double entendres were also an issue of deep concern to the Revisory Board, including one involving a song entitled "Santa has Cotton Balls and a Candy Cane."

But when the Revisory Board disbanded so too was a formal procedure. Informally, Compendium II of Copyright Office Practices spelled out a reconsideration proceeding, but it stopped at the Chief of the Examining Division. In the Copyright Reform Act of 1993, which did not pass, an appellate procedure would have been established. Even though the Act didn't pass, Ms. Peters instituted an interim one on May 4, 1995. The Franklin Pierce Law School has a very helpful database of Appeals Board decisions from October 30, 1995 to March 14, 2004, at this link. The decisions are worth reading.

One thing to bear in mind is the Office's interpretation of what a "final decision" is. For purposes of an APA review, one has to follow the appeals process. But for purposes of filing an infringement suit, the rejection from the line examiner suffices.

Bikram and Supplementary Registration

Supplementary registration is provided for in Section 408(d) of the Copyright Act. The Copyright Office has regulations in 37 CFR 201.5 and a Circular, No. 8 The purpose of a supplementary registration is to "correct" or "amplify" information on an original registration, hence the name of the form for it, CA (correct/amplify). It also follows from this purpose that there must be an original registration on file to correct or amplify. A few things must be borne in mind: a supplementary registration is issued a new registration number in the same class as the original registration, and doesn't expunge or modify the original: the supplementary registration merely"augments" the basic registration by placing new information on the public record (and it is therefore usually cross-referenced to the original record).

There isn't a new deposit requirement because the CA does not expand the existing registration but merely corrects or amplifies it . (The deposit requirement does come into play in one respect: because the deposit requirements are different for unpublished than for published works, a CA may be used where the original claim was for a published work but it is now considered unpublished, but not vice versa).

A CA may be used to correct errors in the basic registration made at the time of the original registration, like an authorship listing. Authorship issues may also be addressed in the amplification part of a CA to add a co-author who was left off, but not to reflect changes in ownership since the basic registration was made. For purposes of statutory damages and attorneys fees, the date of the original registration governs, a very important point for those who might be tempted to seek a new registration.

On Monday, August 22d I did a posting about a claim of copyright in a series of 26 yoga exercises by Bikram Choudhury. I noted there was a CA registration, that it stated "compilation of exercises," and that it was made to a 1979 basic registration for a book. The CA was submitted on December 3, 2002. The CA was preceeded by this: On October 23, 2002, registration on form PA was sought for "Bikram's Asana Sequence," with the nature of authorship described as "selection and arrangement." The cover letter asserted that the work was a "copyrightable performing arts work," and that special handling was sought in connection with a suit already brought in the Central District of California against the Morrisons. In a letter dated October 28, 2002, the Office questioned the application on various grounds, including the large gap in the alleged creation date of 1965 and the date of first publication of 1994.

There were apparently a number of telephone calls between Bikram's attorney and the Examining Division following the letter. In a letter dated dated November 27, 2002 from the Examining Division, Performing Arts section, to Bikram's attorney, the Office suggested filing a CA to the 1979 TX registration for the book to claim either "compilation of exercises" or "selection and arrangement of exercises." The Office noted that the CA would "augment but not supersede the previous registration." A fax dated the same day has what is to me an important clarification about the registration. A handwritten annotation from a Senior Examiner states: "I received your message about the gymnastic floor exercise. I believe I mis-spoke in our earlier conversation. We do not register such claims as choreography, but rather as a compilation of floor exercises." On December 5, 2002, the PA application was abandoned in favor of a CA along the lines suggested by the Office.

The effect of the CA was essentially nil: the claim in the book, which was for entire text, the broadest description, could hardly have been made broader. The only thing that the CA registration did was to note for the public record that entire text included a compilation of exercises. Among the things the registration did not do are the following, contained in a February 5, 2003 press release from Bikram's attorney: "the United States Copyright Office acknowledges Bikram's exclusive right to the distinct series of postures and breathing exercises comprising the sequence and Bikram's Beginning Yoga Class." The Copyright Office never "acknowledges" anyone's exclusive right to anything by registering it: the Office is one of record, and registers claims; it doesn't have the staff to determine whether the claim is true, a fraud, or based on an error. In this case, the Office merely said: "Hey, you registered a claim in 1979 for an entire book; you now want to state that some material already in the book is protected ." In fact, the handwritten notation from the Examiner emphatically stated no choreography claim could be made. As a result, Bikram has, in my opinion, no registered claim in the choreography of the asanas.

As importantly, the press release states that "Due to the originality of the sequence and the strength of the copyright registration, infringement of the sequence can occur in a number of ways." Those ways including "the unauthorized use of even a small number of consecutive postures" and the teaching of the sequence. The registration says nothing about infringement; no registration ever does; nor for the reasons given in the last blog would performance of the exact sequence of 26 asanas every constitute infringement. And we know from Feist that the scope of protection in compilations is thin, not as the press release suggests, obese.

In my opinion, the press release seriously misrepresents the registration and the law. To leave this posting with an amusing precedent, though, in Seltzer v. Sunbrock, 22 F. 621 (S.D. Cal. 1938), a chap registered a claim in a book about roll-skate racing. He then put on, implausibly, a month-long roll-skating event at which skaters traversed the equivalent of coast-to-coast. So many people bought tickets that a competing game was mounted. The owner of the book sued; the competitor didn't have access to the book and couldn't have copied it, and didn't in any event. Improvidently a TRO was earlier issued and then dissolved in this opinion once the judge woke up and smelled the coffee beans. Let's hope that happens in the yoga community.

Football and the Idea-Expression Dichotomy

Continuing the thread if not the theme of the last three blogs, today's is on the idea-expression dichotomy, prompted by a June 27, 2005 opinion in Reed v. Peterson, by Judge William Schwarzer of the ND California. The case was brought to my attention by Cathy Kirkman of Wilson Sonsini, who runs the fantastic SVmedialaw blog, which I highly recommend.

Reed wrote a book called "Football Clock Management." The book advocated that coaches and players use prescribed offensive and defense strategies for managing time during a football game. Defendant wrote a competing book called "The Football Coaches' Guide to Clock Management." As if Baker v. Selden never existed, plaintiff in Reed apparently claimed a copyright "in the use of principles and rules as a method of instruction of clock management." Judge Schwarzer quickly dispatched the claim (but without citing Baker), noting the bad things that would happen if plaintiff prevailed as well the thin nature of copyright in factual works. His opinion is a solid discussion of frequently-recurring issues.

Baker v. Selden is often referred to as "about" the idea-expression dichotomy, even though it never used the word idea or really discussed the concept. I think of Baker as a "blank form" case, derived from the very end of the opinion which expresses the Court's actual holding. But if Baker is an "idea-expression dichotomy case" what does that mean? Indeed, what does it mean to say that Section 102(b) "codifies" the dichotomy? We would have to know what the dichotomy is at the least, why it is a "dichotomy," and how we can use it.

In a recent case in the SDNY, discussed in a prior blog involving photographs, Judge Kaplan doubted that the idea-expression has any application beyond literary works, and certainly none to visual works. Reed involved a literary work so it could have application even for Judge Kaplan. In the end, though, I think we are better off if we appreciate that the idea-expression dichotomy is not an analytical tool; it is not a test; "idea" and "expression" are simply labels that reflect that some material is protected and some isn't, and that determination is always after-the-fact. See Veeck v. SBCCII, 293 F.3d 791, 816 (5th Cir. 2002)(en banc)(Judge Weiner, dissenting); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971).

"Idea" and "expression" are not categories that have content; they do not express set characteristics; they are just metaphors by which we pretend we are reasoning a priori, when in truth we are engaged in fact-finding.

Copyright and Athletics

This is the last of three postings dealing with copyright in movement. The first was on choreography, the second was on Yoga, and this one is on athletics. But just like the choreography posting was also about the utility of the copyright system, this one touches on the utility of labels or categorization as a way to decide whether protection should be granted.

There have been a number of interesting looks at the topic from the standpoint of cognitive science, including collections of essays in Similarity and Categorization , edited by Ulrike Hahn and Michael Ramscar (Oxford U Press 2001), and Handbook of Categorization in Cognitive Science, edited by Henri Cohen and Claire Lefebvre to be published in October by Elsevier. Steven Winter has an interesting chapter on categorization and "reasoning" by analogy in A Clearing in the Forest: Law, Life, and Mind (2001). And Judge Posner has an extensive review of the issue on pages 86-100 of The Problems of Jurisprudence, which he begins as follows: "The heart of legal reasoning as conceived by most modern lawyers is reasoning by analogy. This method of practical reasoning has an impeccable Artistotelian pedigree but no definite content of integrity; it denotes an unstable class of disparate reasoning methods."

As Judge Posner notes, analogies are sometimes used inductively, that is, we have had experiences in the past (like owning Volvos since 1963) and so think that if a new type of car is said to be like a Volvo, we expect it to share known features, understanding though that the new car isn't a Volvo but may share some of its characteristics. Another use of analogy is to to regard it as a form of authority; A is protected, we say B is like A, therefore B should be protected too. B is, legally, no different from A.

In protecting scripted movement, choreography stands as "authority" in this sense because it is a statutorily enumerated type of subject matter in the Copyright Act. As a class, choreography is protected; whether any individual piece of choreography will be protected turns only whether it is "original." Yoga shares with choreography both its movement and its scripted nature, and we can assume that any given yoga series can be "original" in the sense of not being copied. Bikram may have been the first to select 26 out of 84 or more ancient postures. But, yesterday I took the view (which I adhere to) that Bikram's yoga sequence did not give him any right to prevent others from performing that exact sequence, or I would add here, from inserting new ones or subtracting from the 26. Bikram claimed that the sequence was designed to and did create health benefits, and I regarded it as a Section 102(b) process. So, while yoga shares some characteristics with choreography, others it doesn't are to me determinative.

What about athletic routines, like figure skating or football plays? There have been attempts to secure protection for football plays, beginning in 1984 with registration of a I-Bone formation with the Copyright Office by two Texans, James Smith and Joey Lorenzo. The Copyright Office took the view though that the registration did not cover the performance of the formation. See Craig Neff, "Whose Bone is it, Anyway?" Sports Illustrated, January 23, 1989, at p.7. In arguing for protection, a law review notes state that "Football plays can be described on paper in ways analogous to dance steps." Brent Moberg, "Football Play Scripts: A Potential Pitfall for Federal Copyright Law?", 14 Marquette Sports L. Rev. 525, 540 n. 115 (2004). But that's not the point, although it does present the analogical reasoning issue I am interested in.

The point is whether football plays, all of which involve motion and some of which may be scripted in part, share the key attributes that led to Congress to protect choreography. In other words, are football plays (B) legally so close to choreography (A) that B is A? How do we make that determination?

Calling football a "sport" and choreography "art" doesn't help unless those categories have defined characteristics and those characteristics have relevance to the facts at hand and to the legal issue too. I think we have to first identify the salient features of originality in choreography, those things that result in choreography being protected: is it the presence of choices, and the purely aesthetic purpose? For something to be protected analogously to choreography, it would have to share those features and not have others that disqualify protection. Yoga, for example, has a utilitarian function and is probably not concerned with aesthetics in the sense that the movements are not principally designed to be aesthetically pleasing. Football is also functional: get to the other end of the field, and it has rules that restrict choice. And, of course, the football script is only for one side, and varies as soon as the play starts due to the other side's reactions. But what about figure skating? Not functional, and scripted.

Yoga and Copyright

The last posting, on choreography, mainly dealt with the lack of utilization of copyright by choreographers and others such as fine artists. One reason for choreographers' attitude toward copyright is that protection was very late in coming, and until 1978 quite limited. Of necessity, if not by design, alternatives had to be found.

Although choreography is of very ancient origin, the first registration was not until 1952. Even in 1952, there was not a separate enumeration in the statute for choreography (as there is now). Instead, choreography had to qualify as a species of dramatic composition in Section 5(d) of the 1909 Act; that meant the choreography had to tell a story. This requirement excluded a lot of what was then called "modern" dance. Fixation was also problematic and expensive since videotaping was not an option. (Tapes weren't an option for musical compositions either). The 1976 Act opened things up both by expanding choreography to include abstract choreography (by which I mean choreography that doesn't tell an overt story like Cinderella), and by permitting more flexible fixation, including videotaping. The same holds true for pantomime (protected for the first time in the 1976 Act). The Office has a fact letter on both.

But what about other scripted routines involving motion, like yoga? Until April 1, 2005, I would never have thought a court would entertain the possibility that one could acquire exclusive rights over the performance of yoga exercises. Leaving aside serious questions of origination, yoga routines are intended to bring about physical, mental, or emotional results and are, therefore, excluded by Section 102(b). Nor does a book about them convey any rights in the routines; that's been the law since Baker v. Selden, 101 U.S. 99 (1879), which rejected a claim by the author of a treatise on bookkeeping that a registration for the book gave him exclusive rights over the system of bookkeeping explained therein. Baker v. Selden is one of the foundations for Section 102(b).

So if everything is so clear, what happened? Bollywood met Hollywood and were married by ignorance, a lethal combination. Bikram Choudhury, a Calcutta native transplanted to LaLa Land, became a yoga teacher to the stars, through his Bikram "hot" yoga style, consisting of 26 yoga positions (asanas), and two breathing exercises, performed at a room temperature of about 105 degrees. We will assume arguendo he was the first to select these particular 26 positions. Importantly, he was quite insistent that they be performed strictly in order to achieve advertised physical and emotional benefits. Whether they did or not is irrelevant to me.

A book, "Bikram's Beginning Yoga Class" was written, and perhaps published before 1978, although that's unclear, at least to me, because the literary work registration (TX 179-160) states it was created in 1978 and first published on January 1, 1979 (most unlikely); the application was submitted on January 17, 1979. The claim of authorship was for "entire text."

Sometime in this new century, Bikram concluded, somehow, that he not only had a copyright in his selection of the 26 positions, but that this selection gave him the exclusive right to stop others from performing them in that order. That's baloney, as Baker v. Selden shows. And his registration was, as in Baker, on a literary work form and for "text," not choreography or any form of performing arts work (PA). That didn't stop him though from suing and threatening to sue, and making what were, in my opinion wildly extravagant and erroneous claims about the extent of this copyright.

On October 24, 2002, he filed a supplementary registration to the 1979 one, TX 5-624-003, listing amplified information of "compilation of exercises." There was correspondence over this that I am dying to see and will as soon as possible. If relevant, I'll revise this posting. But, no matter for right now; the supplemental registration was also for a literary work (it amplified a textual work, after all), and was a compilation claim. It still was not a choreography claim. Yet, Bikram asserted in litigation that "the teaching or offering of the sequence" constituted infringement. That is, as I said, baloney.

The claim was made in a declaratory judgment action brought by the Open Source Yoga Unity, a non-profit group. Their website has copies of many of the relevant legal documents. The case has now been settled, but not after an April 1, 2005 opinion by Judge Phyllis Hamilton of the Central District of California, denying Open Source's motion for summary judgment. A decision that Bikram had a copyright in a pictorial compilation of 26 exercises or in narration about them would be uncontroversial, no more so than a compilation of someone's choices of the best Indian restaurants in New York City. But what is controversial, indeed, outrageously wrong, was Judge Hamilton's conclusion that "should Choudhury establish at trial that his copyright in the Bikram yoga style is valid, under Section 106(4) he retains the exclusive right to authorize the public performance of his sequence."

Not true. Section 102(b) dictates otherwise, as does the very limited scope of the compilation. The only thing hot about Bikram's claim is the air in stating it.

Choreography and Alternatives to Copyright Law

Given all the attention copyright law gets, one would think copyright protection is of vital interest to creators of original works of authorship. The copyright industries are fond of pointing out the relative importance of their industries to the GDP, and indeed they are important. This too might make one believe copyright protection is pervasively important. How can one measure the importance of copyright protection though (without going into the scope or extent of that protection, which is obviously also an important question)?

One way, an imperfect one, is to look at copyright registrations, since for U.S. works, registration (or rejection) is a prerequisite to bringing suit and for all works it is a prerequisite for getting statutory damages and attorneys fees. In FY 2004, the Copyright Office received 614,235 claims and registered 661,469 claims (the larger number being attributable to the processing of claims received in FY 2003 as well). More copyrighted works are created in part of one day in New York City alone. Not more economically valuable works necessarily, and that's part of why registration figures can't supply a complete answer. But 600,000 plus works a year is a very small number (and that number also includes registrations for foreign works).

Even within the 600,000 plus figure, the numbers are heavily weighted toward some groups and away from others. The fine arts are one example of a class of works that have, historically, been underrepresented in registrations. Choreography is another. The Register of Copyrights' 2004 Annual Report lists registration numbers for the broad class of performing arts, a class that also includes music, motion pictures and other audiovisual works, and other dramatic works. This class represented 170,512 registrations in FY 2004. More detailed breakdowns are given though in the number of registered works transferred to the Library's collections. Here, while the category includes dramatic works, it does not include music or motion pictures and other audiovisual works. Only 1,115 registered dramatic works , choreography, and pantomimes were transferred to the Library.

This very low figure corresponds to the legal literature on copyright and choreography, which repeatedly notes choreographers' decision not to rely on copyright and to instead develop their own "community" system of protection, protection believed to be better suited to choreography and providing better protection. The community system works in large part because of the concentration of choreographers in New York City, the tight-knit nature of dance companies, and the reputation within the community enjoyed by choreographers.

In brief, the dance community recognizes the choreographer's right to control his or her works even after they have been performed. Where a dance company different from that for whom the work was originally written wishes to perform the work, the choreographer ensures that the company is capable of performing the work and that it will ensure the integrity of it. A formal license agreement is entered into. This sounds like contract law, and it is. But the recognition of a choreographer's interest goes well beyond this, including rights of attribution where the work is revised, and a right to withdraw the work from performance. Interesting discussions can be found in Barbara Singer, "In Search of Adequate Protection for Choreographic Works: Legislative and Judicial Alternatives vs. the Custom of the Dance Community, 38 U. Miami L. Rev. 287 (1984) and Leslie Wallis, "The Different Art: Choreography and Copyright," 33 UCLA L. Rev. 1442 (1986).

The choreography example may be unique, but one wonders what form of protection, if any, the vast majority of copyrighted works not registered each year rely on, and whether amidst all the debates on copyright we are fussing about the tip of the iceberg.