Ever since Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868)(No. 3,552), the nature and scope of protection for dramatic works has been problematic. In that case, Augustin Daly's play "Under the Gaslight" (made into a 1914 movie starring Lionel Barrymore) was alleged to have been infringed by Dion Boucicault's play "After Dark." There was no copying of dialogue or characters; instead, the principal focus of the suit was the "railroad scene," described as "the chief value of the composition and its popularity," and as being 'entirely novel, and unlike any dramatic incident by any author before plaintiff." The nature of the infringment was the copying of "dramatic effect ... produced by what is done by movement and gesture, entirely irrespective of anything that is spoken ... the spoken words in each are but a trifling consequence to the progress of the series of events." 6 F. Cas. at 1133.
Palmer's lawyer wrote in a law review article that it was "the first decision which established a property right in incident ... [and which] advance[s] in literary law the doctrine of ... equivalents" found in patent law," T.W. Clarke, 3 American L. Rev. 453 (1869). While this might be dismissed as the grumblings of a losing party, Professor Ben Kaplan, in "An Unhurried View of Copyright" (p. 32) wrote that much of the interest in the scene derived from mechanical stage effects, that Daly had copied from his predecessors, and that Boucicault had made changes in copying the scene from Daly.
Daly's approach to finding copyright in dramatic action alone was endorsed by the Supreme Court in the "Ben Hur" case, Kalem Co. v. Harper Brothers, 222 U.S. 55, 63 (1911), which rejected the argument that such protection would grant protection to ideas. Daly also served served as the springboard for Judge Hand's Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) opinion. Daly has been called the first modern copyright infringement opinion, which may not be a compliment, but it is relevant to a very current dispute.
In Sunday's New York Times, Jesse Green has a long, detailed article, "Exit, Pursued by A Lawyer," about a pending suit in the SDNY before Judge Lewis Kaplan. The suit was brought by director Edward Einhorn who is reported to have alleged that his directorial contributions to the Off-Off Broadway play "Tam Lin" are copyrightable and infringed by their use without his permission. Mr. Einhorn was fired before the play went on, after two months of unpaid work. The play closed after 10 performances and may or may not be revived. Einhorn reportedly seeks $150,000 in statutory damages, an amount said to have reached $3 million at this point. Copyright lawyers will, at this point in the article, already be suspicious, since statutory damages are awarded per work, not infringement.
The suit is said to have been filed in October 2005 and be set for trial in April 2006. For those of us who practice in the SDNY that seems wildly fast. And then there is the registration, No. PA 1-254-494, which was effective December 10, 2004, for a work said to have been published on October 21, 2004, an unlikely characterization since performance is not publication. The claim is in "blocking and choreography script," with preexisting being listed as the script of the play. The claim, is in, other words, for a derivative work, and unlike the Times article, could most easily be read as one in choreography, not for aspects of a dramatic composition.
Whatever the procedural posture, the case is, though, in excellent hands. Judge Kaplan brings to the case a dazzling intellect, a scholar's thoroughness, and a vast amount of experience with copyright litigation, including one directly on point: Thomson v. Larson, 1997 U.S. Dist. LEXIS 13150 (S.D.N.Y. July 31, 1997), aff'd, 147 F.3d 195 (2d Cir. 1998), in which a dramaturg sought co-author status for her contributions to the play "Rent."
The New York Times article canvasses a number of disputes where directors have sought "intellectual property" protection, and provides pictures and some details about some, regrettably in much more detail than about the Tam Lin dispute itself. Of particular interest are the pictures and information about the 1995-1997 dispute between Joe Mantello over his production of "Love!Valour!Compassion!, which is said to have resulted in a decision to dismiss defendant's motion to dismiss. I could not find the decision on Westlaw and Lexis, though.
Defendants in the Einhorn case dismiss his contributions as de minimis: where the play script said "Exit," he said "Exit left." Where the play script said "Pick up book," he said "Pick up red book." Einhorn's lawyer (his older brother) disputes this. One would have to know a great deal about the facts to be able to sort out the merits of the claim, as well as know whether the claim is one for choreography or something different. But on the purely legal side, there are a few matters in play. First, Daly v. Palmer and Kalem Bros. provide sound support for claims of copyright in dramatic meaning shorn of words. The term "stage direction" is, by itself, unhelpful in figuring out whether a director's contributions to the dramatic meaning of a play were protectible. (And, contrary to the misinterpretation of Childress v. Taylor that is so rampant, each person's contribution need not be capable of being protectible on its own, the subject of another blog). What is required is a fact specific inquiry into the actual contribution made.
Then there are the issues of joint authorship, implied license, and status as a derivative work. If, as Einhorn apparently represented to the Copyright Office, his work is a derivative work of the play script, under Section 103, he is unlikely to be able to have a valid copyright without the playwright's permission, which presumably here would be denied. If Einhorn instead claims he is a joint author, then the other joint authors can use his contributions without his permission, subject only to an accounting, and amount which sounds minimal. If no joint authorship existed because there was no intent (the intent perhaps eliminated by his firing before the play was produced), and his contributions were protectible (and severable from the play), then one reaches the issue not fully reached in Thomson v. Larson, aside from implied license: what happens when someone has contributed copyrighted material but is not a joint author?
Sunday, January 29, 2006
Friday, January 27, 2006
There's Hole in Your Opinion, Partner
Hank Williams Sr. left a legacy befitting a great musician: enough classic recordings to fill box sets that can be reshuffled and sold anew every holiday season, illegitimate children who can tie up the estate in litigation for years, and undiscovered live recordings whose chain of title is as tortured as James Frey and Doubleday's relationship to the truth. A week ago, a Tennessee state appellate court issued an opinion that addresses this final attribute of greatness, Polygram Records, Inc. v. Legacy Enterntainment Group, LLC., although the court's reasoning is staggeringly bad.
In 1947-1953, Williams signed an exclusive services contract with Polygram's predecessor, MGM Records, "for the purpose of making phonograph records." During the same time period, Williams and his band, The Drifting Cowboys, were frequent visitors on Nashville's WSM Radio's "Mother's Best Flour" program. When they performed live at the station, WSM made, for its own purposes, recordings. When the Boys in the Band were on the road, they made their own pre-recorded performances for WSM, which WSM then broadcast. Neither WSM nor Williams ever released the recordings and Williams never had possession of them.
In the 1960s, WSM moved its offices. Les Leverett, a WSM photographer, was going through the trash bins at the time and came upon the (acetate) recordings. WSM let him keep them. He took them home and did nothing. In 1982, the late Hillous Butrum, one of the Drifting Cowboys, discovered that Leverett had the recordings and bought whatever rights Leverett had in them, in exchange for giving Leverett 40% of all monies earned from their exploitation. Compact discs were just coming out and Butrum began to do a transfer, cleaned up problem spots, and added new music and voice overs. He never followed through on releasing the recordings, and in 1997 sold his rights to defendant Legacy. Polygram learned of Legacy's plan to release the recordings and after unsuccessful negotiations, sued. Hank Willams Jr. and Jett Williams intervened and claimed they were the copyright owners. The court of appeals affirmed the trial court judgment for Jr. and Jett.
The court's opinion is full of puns on the titles of Willams' songs (as the title of this blog is a dig at the opinion), which would be less grating if the opinion was "sound;" alas, it isn't. Polygram's claim was the easiest to dispose of, and here the court got it right. Polygram's claim (at least as explained in the opinion) was contractual, based on the services contract. The appellate court agreed with the trial court that Polygram's contract didn't cover the recordings that occurred as an adjunct to the WSM performances, but even if it did, how that would vest copyright in Polygram is not explained, and in any event, Polygram's claim could not encompass Butrum's later derivative authorship.
Legacy certainly had a claim to Butrum's derivative authorship, but that authorship would be infringing and any registration invalid unless it was done with the permission of the original rights holder of the 1950s acetate recordings. Legacy traced rights in those recordings to Leverett, who of course, had to trace his rights to WSM letting him take the acetates from the trash bin, and to WSM originally having the rights. So did WSM or someone else have rights in the original recordings?
The court held that Jr. and Jett did, ultimately dismissing Polygram and Legacy's claims: with their claims dismissed, the court held no one else had standing to challenge Jr. and Jett, who won, therefore, by default. As unsatisfactory as this is, how the court got to dismissing Legacy's claims is even more unsatisfactory. To begin with, there is the question, never addressed, of WSM's rights as the producer of the sound recordings: why wasn't this enough for at least joint authorship? And in a pre-1972 sound recording era, it might even have been enough, in some jurisdictions under some facts, for sole authorship. But certainly joint authorship represented a solid claim for WSM (and, by the way, also for Butrum, who could have conveyed his proportional interest to Legacy if he performed on the recordings).
Whether that resulted in Leverett gaining rights when WSM let him take the acetates is a different question. Here, the court referred to federal copyright law, which as embodied in Section 202, makes clear that transfer of the physical embodiment does not transfer copyright rights. But this doesn't mean the same answer is required under state law for pre-1972 sound recordings. In some jurisdictions, like New York, the owner of the master will usually own intangible rights. WSM could therefore have had a valid claim based on ownership of the acetates, if that was the status of Tennessee law. But we'll never know because that isn't how the court analyzed the issue.
In a bizarre leap, the court relied on Tennessee right of publicity law. Apparently, Legacy argued that Williams had transferred his publicity rights and that this somehow encompassed copyright in the performances. The court seems to have agreed with the premise that publicity rights encompass copyright in the performance, which if I understand the court's discussion, I find astonishing, but this was merely a method for the court's use of a double negative to get rid of Legacy's claim:
"We are unwilling to infer, indeed to jump to the illogical conclusion that Hank Williams assigned [publicity] rights without limitation based on the mere fact that his heirs cannot establish that the 1951 informal agreement with WSM provided to the contrary." The court then affirmed that the heirs owned those rights by default, those rights being the publicity rights encompassing the copyright in the recorded performance.
Someone will no doubt write a bad country song about the opinion, but I would rather it be the blues.
In 1947-1953, Williams signed an exclusive services contract with Polygram's predecessor, MGM Records, "for the purpose of making phonograph records." During the same time period, Williams and his band, The Drifting Cowboys, were frequent visitors on Nashville's WSM Radio's "Mother's Best Flour" program. When they performed live at the station, WSM made, for its own purposes, recordings. When the Boys in the Band were on the road, they made their own pre-recorded performances for WSM, which WSM then broadcast. Neither WSM nor Williams ever released the recordings and Williams never had possession of them.
In the 1960s, WSM moved its offices. Les Leverett, a WSM photographer, was going through the trash bins at the time and came upon the (acetate) recordings. WSM let him keep them. He took them home and did nothing. In 1982, the late Hillous Butrum, one of the Drifting Cowboys, discovered that Leverett had the recordings and bought whatever rights Leverett had in them, in exchange for giving Leverett 40% of all monies earned from their exploitation. Compact discs were just coming out and Butrum began to do a transfer, cleaned up problem spots, and added new music and voice overs. He never followed through on releasing the recordings, and in 1997 sold his rights to defendant Legacy. Polygram learned of Legacy's plan to release the recordings and after unsuccessful negotiations, sued. Hank Willams Jr. and Jett Williams intervened and claimed they were the copyright owners. The court of appeals affirmed the trial court judgment for Jr. and Jett.
The court's opinion is full of puns on the titles of Willams' songs (as the title of this blog is a dig at the opinion), which would be less grating if the opinion was "sound;" alas, it isn't. Polygram's claim was the easiest to dispose of, and here the court got it right. Polygram's claim (at least as explained in the opinion) was contractual, based on the services contract. The appellate court agreed with the trial court that Polygram's contract didn't cover the recordings that occurred as an adjunct to the WSM performances, but even if it did, how that would vest copyright in Polygram is not explained, and in any event, Polygram's claim could not encompass Butrum's later derivative authorship.
Legacy certainly had a claim to Butrum's derivative authorship, but that authorship would be infringing and any registration invalid unless it was done with the permission of the original rights holder of the 1950s acetate recordings. Legacy traced rights in those recordings to Leverett, who of course, had to trace his rights to WSM letting him take the acetates from the trash bin, and to WSM originally having the rights. So did WSM or someone else have rights in the original recordings?
The court held that Jr. and Jett did, ultimately dismissing Polygram and Legacy's claims: with their claims dismissed, the court held no one else had standing to challenge Jr. and Jett, who won, therefore, by default. As unsatisfactory as this is, how the court got to dismissing Legacy's claims is even more unsatisfactory. To begin with, there is the question, never addressed, of WSM's rights as the producer of the sound recordings: why wasn't this enough for at least joint authorship? And in a pre-1972 sound recording era, it might even have been enough, in some jurisdictions under some facts, for sole authorship. But certainly joint authorship represented a solid claim for WSM (and, by the way, also for Butrum, who could have conveyed his proportional interest to Legacy if he performed on the recordings).
Whether that resulted in Leverett gaining rights when WSM let him take the acetates is a different question. Here, the court referred to federal copyright law, which as embodied in Section 202, makes clear that transfer of the physical embodiment does not transfer copyright rights. But this doesn't mean the same answer is required under state law for pre-1972 sound recordings. In some jurisdictions, like New York, the owner of the master will usually own intangible rights. WSM could therefore have had a valid claim based on ownership of the acetates, if that was the status of Tennessee law. But we'll never know because that isn't how the court analyzed the issue.
In a bizarre leap, the court relied on Tennessee right of publicity law. Apparently, Legacy argued that Williams had transferred his publicity rights and that this somehow encompassed copyright in the performances. The court seems to have agreed with the premise that publicity rights encompass copyright in the performance, which if I understand the court's discussion, I find astonishing, but this was merely a method for the court's use of a double negative to get rid of Legacy's claim:
"We are unwilling to infer, indeed to jump to the illogical conclusion that Hank Williams assigned [publicity] rights without limitation based on the mere fact that his heirs cannot establish that the 1951 informal agreement with WSM provided to the contrary." The court then affirmed that the heirs owned those rights by default, those rights being the publicity rights encompassing the copyright in the recorded performance.
Someone will no doubt write a bad country song about the opinion, but I would rather it be the blues.
Wednesday, January 25, 2006
SOC'S Last 5-4
With the vote to confirm Judge Alito in the bag, Justice O'Connor has left the building. The Court does not hear argument again until February 21, when Alito will take his spot as the newest member. Justice O'Connor left, fittingly, in two ways. First, with a 9-0 opinion in an abortion case Ayotte v. Planned Parenthood of Northern New England (January 18) and, second, by supplying the 5th vote on January 23rd in a sovereign immunity case, Central Virginia Community College v. Katz. (Katz held that States are subject to suit by bankruptcy trustees seeking preferential transfers for the debtor's estate).
Both cases are fitting because she strove mightily to forge unanimity and succeeded more often than she is given credit for (i.e. Feist), but also because on issues where the Court was sharply divided, as a pragmatist, she wanted the law to work for people, and did not see it as an ideological exercise.
The Katz case is interesting both because it would have come out the other way with Justice Alito on the bench, and because of its implications for Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457 (1982), a case that has featured prominently in debates about Congress's power to enact intellectual property legislation under the Commerce Clause, a connection noted by Justice Stevens' majority opinion (p. 11 n.9). Justice Thomas's dissent makes repeated references to copyright, stating in one passage that he could see no reason under the majority's view to distinguish between Commerce Clause power and the power to establish uniform bankruptcy laws or to grant exclusive rights under Article I, sec. 8 clause 8 (p.4. See also p. 6).
It will be interesting to see what this leads to in the lower courts and if the matter reaches the Supreme Court again, what the force of stare decisis is, a topic of much recent discussion.
Both cases are fitting because she strove mightily to forge unanimity and succeeded more often than she is given credit for (i.e. Feist), but also because on issues where the Court was sharply divided, as a pragmatist, she wanted the law to work for people, and did not see it as an ideological exercise.
The Katz case is interesting both because it would have come out the other way with Justice Alito on the bench, and because of its implications for Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457 (1982), a case that has featured prominently in debates about Congress's power to enact intellectual property legislation under the Commerce Clause, a connection noted by Justice Stevens' majority opinion (p. 11 n.9). Justice Thomas's dissent makes repeated references to copyright, stating in one passage that he could see no reason under the majority's view to distinguish between Commerce Clause power and the power to establish uniform bankruptcy laws or to grant exclusive rights under Article I, sec. 8 clause 8 (p.4. See also p. 6).
It will be interesting to see what this leads to in the lower courts and if the matter reaches the Supreme Court again, what the force of stare decisis is, a topic of much recent discussion.
Monday, January 23, 2006
A Straightforward 411(a) case
Among my disagreements with the Nimmer treatise is its insistence, contrary to the plain language of the statute, that the copyright owner of a United States work need not have actually obtained registration or a refusal before instituting an infringement suit. (See earlier posting). Outside of the Fifth Circuit, courts have, almost without exception, rejected this view. On January 20th, the Eleventh Circuit did so again. The opinion also lays out in a straightforward way some common evidentiary issues that arise. The opinion is so clear, useful, and short that it is worth reproducing. In particular, it tells us how to get before the court evidence that the plaintiff has not registered, usually a task akin to disproving a negative. Here is the opinion in full:
2006 U.S. App. LEXIS 1375, *
JOHN D. WATKINS, Plaintiff-Appellant, versus SOUTHEASTERN NEWSPAPERS, INC., d.b.a. The Augusta Chronicle, Defendant-Appellee.
No. 05-13869 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2006 U.S. App. LEXIS 1375
January 20, 2006, Decided January 20, 2006. [*1] NOT FOR PUBLICATIONPRIOR HISTORY: Appeal from the United States District Court for the Southern District of Georgia. D.C. Docket No. 04-00127-CV-1-AAA.
JUDGES: Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.OPINION: PER CURIAM:John D. Watkins, proceeding pro se, appeals the district court's order granting Southeastern Newspapers, Inc.'s renewed motion for summary judgment in a pro se action for copyright infringement, 17 U.S.C. § 101 et seq. Watkins alleged that Southeastern infringed his copyright in a book he had written, King's Last Visit to Augusta (He Was Persona Non Grata) (hereinafter "the book"), by (1) using a copy of a photograph of Dr. Martin Luther King, Jr. (hereinafter "the photograph") which was contained in the book in a newspaper article it published, and (2) selling copies of the photograph on the Internet. n1 On appeal, Watkins argues that the district court erred when it granted Southeastern's motion for summary judgment based on a letter from the U.S. Copyright Office, which indicated that Watkins had not registered his copyright in the book, because (1) the letter was inadmissible hearsay, and (2) Southeastern did not [*2] disclose the name of the witness who wrote the letter, or the letter itself, as it was required to do pursuant to Fed.R.Civ.P. 26(a)(1).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -n1 In his complaint, Watkins also raised a claim for common law plagiarism. On appeal, Watkins does not challenge the district court's finding that this claim was preempted by the Copyright Act, and therefore, he has abandoned any argument on this issue. See, e.g., Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
I. Admissibility of the letter from the Copyright OfficeAs an initial matter, because Watkins did not challenge the admissibility of the letter from the Copyright Office based on Southeastern's alleged failure to comply with the disclosure requirements of Fed.R.Civ.P. 26(a)(1) before the district court, Watkins has waived any argument on this issue, and we will not consider it on appeal. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) [*3] (noting that, except for limited exceptions which are not applicable in this case, issues not raised in the district court generally are not considered on appeal).Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," and generally is not admissible unless it falls under an exception to the hearsay rule. See Fed.R.Evid. 801(c) and 802. There is an exception to the hearsay rule for public reports and records. See Fed.R.Evid. 803(8)(C). That exception provides, in relevant part, that "records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . factual findings resulting from an investigation made pursuant to authority granted by law," are admissible "unless the sources of information or other circumstances indicate lack of trustworthiness." Id. We have explained that "Rule 803(8)(C) allows into evidence public reports that (1) set forth factual findings (2) made pursuant to authority granted [*4] by law (3) that the judge finds trustworthy," unless the evidence is otherwise inadmissible because it is irrelevant or is more prejudicial than probative. Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir. 1989). The district court has broad discretion to admit or exclude evidence, and that decision "will not be reversed absent a clear showing of abuse of that discretion." Id.In this case, the district court did not err in considering the letter from the Copyright Office, which is a report from a public office or agency, because it falls under the public-reports-and-record-exception to the hearsay rule See Fed.R.Evid.803(8)(C). First, the letter sets forth factual findings. Second, those factual findings resulted from an authorized search of the copyright registration records. See 17 U.S.C. § 705(c) (authorizing the Copyright Office to "make a search of its public records, indexes, and deposits," for, among other things, information regarding the registration of copyrights). Third, there was no evidence presented contradicting the information in the letter, and there were no other [*5] circumstances indicating that the document otherwise lacked trustworthiness. Finally, the letter is relevant and is not more prejudicial than probative, and therefore, is not otherwise inadmissible. Accordingly, we conclude that the district court did not abuse its discretion when it considered the letter from the Copyright Office.II. Summary judgment was properWe review de novo the district court's ruling on a motion for summary judgment, applying the same legal standards as the district court. See Miller v. King, 384 F.3d 1248, 1258 (11th Cir. 2004). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Copyright Act provides, in relevant part, that "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made . . . ." 17 U.S.C. § 411 [*6] (a). This Court has held that "the registration requirement is a jurisdictional prerequisite to an infringement suit." M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 (11th Cir. 1990); see also Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir. 2000) (describing this rule as "well settled").In this case, because the evidence in the record shows that Watkins failed to register the copyright in his book before bringing his copyright infringement claims, the district court did not have jurisdiction to consider Watkins's claims, and therefore, did not err in granting Southeastern's renewed motion for summary judgment. See M.G.B. Homes, 903 F.2d at 1488.
AFFIRMED.
2006 U.S. App. LEXIS 1375, *
JOHN D. WATKINS, Plaintiff-Appellant, versus SOUTHEASTERN NEWSPAPERS, INC., d.b.a. The Augusta Chronicle, Defendant-Appellee.
No. 05-13869 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2006 U.S. App. LEXIS 1375
January 20, 2006, Decided January 20, 2006. [*1] NOT FOR PUBLICATIONPRIOR HISTORY: Appeal from the United States District Court for the Southern District of Georgia. D.C. Docket No. 04-00127-CV-1-AAA.
JUDGES: Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.OPINION: PER CURIAM:John D. Watkins, proceeding pro se, appeals the district court's order granting Southeastern Newspapers, Inc.'s renewed motion for summary judgment in a pro se action for copyright infringement, 17 U.S.C. § 101 et seq. Watkins alleged that Southeastern infringed his copyright in a book he had written, King's Last Visit to Augusta (He Was Persona Non Grata) (hereinafter "the book"), by (1) using a copy of a photograph of Dr. Martin Luther King, Jr. (hereinafter "the photograph") which was contained in the book in a newspaper article it published, and (2) selling copies of the photograph on the Internet. n1 On appeal, Watkins argues that the district court erred when it granted Southeastern's motion for summary judgment based on a letter from the U.S. Copyright Office, which indicated that Watkins had not registered his copyright in the book, because (1) the letter was inadmissible hearsay, and (2) Southeastern did not [*2] disclose the name of the witness who wrote the letter, or the letter itself, as it was required to do pursuant to Fed.R.Civ.P. 26(a)(1).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -n1 In his complaint, Watkins also raised a claim for common law plagiarism. On appeal, Watkins does not challenge the district court's finding that this claim was preempted by the Copyright Act, and therefore, he has abandoned any argument on this issue. See, e.g., Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
I. Admissibility of the letter from the Copyright OfficeAs an initial matter, because Watkins did not challenge the admissibility of the letter from the Copyright Office based on Southeastern's alleged failure to comply with the disclosure requirements of Fed.R.Civ.P. 26(a)(1) before the district court, Watkins has waived any argument on this issue, and we will not consider it on appeal. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) [*3] (noting that, except for limited exceptions which are not applicable in this case, issues not raised in the district court generally are not considered on appeal).Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," and generally is not admissible unless it falls under an exception to the hearsay rule. See Fed.R.Evid. 801(c) and 802. There is an exception to the hearsay rule for public reports and records. See Fed.R.Evid. 803(8)(C). That exception provides, in relevant part, that "records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . factual findings resulting from an investigation made pursuant to authority granted by law," are admissible "unless the sources of information or other circumstances indicate lack of trustworthiness." Id. We have explained that "Rule 803(8)(C) allows into evidence public reports that (1) set forth factual findings (2) made pursuant to authority granted [*4] by law (3) that the judge finds trustworthy," unless the evidence is otherwise inadmissible because it is irrelevant or is more prejudicial than probative. Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir. 1989). The district court has broad discretion to admit or exclude evidence, and that decision "will not be reversed absent a clear showing of abuse of that discretion." Id.In this case, the district court did not err in considering the letter from the Copyright Office, which is a report from a public office or agency, because it falls under the public-reports-and-record-exception to the hearsay rule See Fed.R.Evid.803(8)(C). First, the letter sets forth factual findings. Second, those factual findings resulted from an authorized search of the copyright registration records. See 17 U.S.C. § 705(c) (authorizing the Copyright Office to "make a search of its public records, indexes, and deposits," for, among other things, information regarding the registration of copyrights). Third, there was no evidence presented contradicting the information in the letter, and there were no other [*5] circumstances indicating that the document otherwise lacked trustworthiness. Finally, the letter is relevant and is not more prejudicial than probative, and therefore, is not otherwise inadmissible. Accordingly, we conclude that the district court did not abuse its discretion when it considered the letter from the Copyright Office.II. Summary judgment was properWe review de novo the district court's ruling on a motion for summary judgment, applying the same legal standards as the district court. See Miller v. King, 384 F.3d 1248, 1258 (11th Cir. 2004). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Copyright Act provides, in relevant part, that "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made . . . ." 17 U.S.C. § 411 [*6] (a). This Court has held that "the registration requirement is a jurisdictional prerequisite to an infringement suit." M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 (11th Cir. 1990); see also Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir. 2000) (describing this rule as "well settled").In this case, because the evidence in the record shows that Watkins failed to register the copyright in his book before bringing his copyright infringement claims, the district court did not have jurisdiction to consider Watkins's claims, and therefore, did not err in granting Southeastern's renewed motion for summary judgment. See M.G.B. Homes, 903 F.2d at 1488.
AFFIRMED.
Friday, January 20, 2006
Fantasy Baseball
Claims in copyright cases (on both sides) sometimes have the air of fantasy about them. A recent dispute involving fantasy baseball leagues revives another fantasy: the assertion by sports leagues that they own copyright in the game statistics. The CDM Fantasy league, owned by the CBC Distribution and Marketing company, filed suit in the Eastern District of Missouri for a declaratory judgment that Major League Baseball's Advanced Media licensing arm cannot require it to take out a license to use game statistics on pain of copyright infringement. (Use of player images might raise right of publicity issues, but those rights are owned by the players, not by the leagues).
Kevin Heller's Tech Law Advisor website posted a blog on the issue last year, and CNN ran a story last week. One would have thought that the Second Circuit's NBA- Motorola decision had ended claims in game data, but the league's Jim Gallagher has been quoted as saying: "Player statistics are in the public domain. We've never disputed that. But if you're going to use the statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain." That's an unusual view of the public domain to say the least; it is a view that the public domain ceases to exist once someone can figure out how to make money off it. And it is the lure of the money that CDM and other sports leagues are making that has brought the matter to a head.
Major League Baseball was successful in getting CDM to pay a license fee in the past, but according to CNN, the Players' Association (?) declined to enter into a new one, prompting the suit.
Kevin Heller's Tech Law Advisor website posted a blog on the issue last year, and CNN ran a story last week. One would have thought that the Second Circuit's NBA- Motorola decision had ended claims in game data, but the league's Jim Gallagher has been quoted as saying: "Player statistics are in the public domain. We've never disputed that. But if you're going to use the statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain." That's an unusual view of the public domain to say the least; it is a view that the public domain ceases to exist once someone can figure out how to make money off it. And it is the lure of the money that CDM and other sports leagues are making that has brought the matter to a head.
Major League Baseball was successful in getting CDM to pay a license fee in the past, but according to CNN, the Players' Association (?) declined to enter into a new one, prompting the suit.
Tom Waits
Tom Waits has always been unique, and well aware of his unique voice and vocal style, he has been aggressive in protecting it, beginning with his well-publicized suit against Frito-Lay in 1990. An article in today's New York Times provides an update of his efforts and his rationale for spending so much time suing those who use imitators, including an award a week ago in Spain against Audi. Another is pending in Germany against Opel.
In all these cases, an advertiser has approached Waits to use his voice in an ad. Waits says no, and the agency hires another singer to mimic him, the jist being to fool the public into thinking it was Waits singing. The Opel case may be something of an exception because the imitator is only accused of performing in a "suspiciously Waitsian voice." What baffles me is why, given his well-known position, they keep asking him and using imitators after he says no.
Waits has no problems with people performing in a way that imitates his voice, but he does take umbrage at people using his voice to sell underwear and cigarettes. His regards such uses as a violation of his moral rights, as unscrupulous behavior by evil doppelgangers, and theft of his property. He has been 100% successful so far, as all defendants have been "Down by Law."
In all these cases, an advertiser has approached Waits to use his voice in an ad. Waits says no, and the agency hires another singer to mimic him, the jist being to fool the public into thinking it was Waits singing. The Opel case may be something of an exception because the imitator is only accused of performing in a "suspiciously Waitsian voice." What baffles me is why, given his well-known position, they keep asking him and using imitators after he says no.
Waits has no problems with people performing in a way that imitates his voice, but he does take umbrage at people using his voice to sell underwear and cigarettes. His regards such uses as a violation of his moral rights, as unscrupulous behavior by evil doppelgangers, and theft of his property. He has been 100% successful so far, as all defendants have been "Down by Law."
Thursday, January 19, 2006
Preliminary Injunctions
I had planned to post this yesterday, but as with Monday's planned posting, both nature and Connecticut Light & Power's continued incompetence thwarted me for the second time this week. Yesterday morning, I was trapped in a commuter train for three hours after a tree hit it. At the same time, power went out at my house again after being on for only 12 hours since Saturday night: it won't be restored until Friday afternoon at best, with the prospect of pipes bursting because of the freezing temperatures. Meanwhile neighbors are driving across my lawn like it was a freeway. Not a good week for blogging or anything else.
The case I wanted to take up is the Ninth Circuit's January 11th opinion in LSG Architects, Inc. v. Concordia Homes of Nevada, which reversed, in part, a district judge who had declined to issue an injunction against the use of architectural plans beyond the scope of a license. The case raises a number of interesting points.
First, where the infringing activity is a one-off and has stopped by the time the preliminary injunction motion is filed, the Ninth Circuit held no injunction can issue due to mootness. The court of appeals went further though and spoke in constitutional terms: Article III requires a case or controversy which doesn't exist if the behavior has stopped. That reasoning seems to confuse remedial relief with subject matter jurisdiction. If no injunction was requested, there would be a case or controversy from the infringement claim. The fact that the activity has stopped may (but as we shall see below need not) argue against the need for a preliminary injunction, the constitutional controversy remains. The court wasn't suggesting dismissing the case entirely, but I am a bit baffled by its belief that it lacked constitutional power to issue an injunction in such circumstances.
Where there is a possibility that the infringing activity can be repeated, the court held that defendant's mere promise not to infringe is insufficient, by itself, not to issue an injunction, and that is one area in which the court reversed, holding: "Voluntary cessation of challenged conduct moots a case ... only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." This argument is frequently made by defendants, and the Ninth Circuit's strong stance on the issue should prove helpful.
The final aspect of injunctive relief was the decision whether to issue what is called a "mandatory injunction." This type of injunction does not seek to preserve the status quo pending a determination on the merits, but instead effectively seeks the ultimate relief sought in the suit. For this reason, mandatory injunctions are disfavored and were by the Ninth Circuit in LGS. (In the LGS case, plaintiff sought the return of the allegedly infringing architectural plans used to build unauthorized homes).
The case I wanted to take up is the Ninth Circuit's January 11th opinion in LSG Architects, Inc. v. Concordia Homes of Nevada, which reversed, in part, a district judge who had declined to issue an injunction against the use of architectural plans beyond the scope of a license. The case raises a number of interesting points.
First, where the infringing activity is a one-off and has stopped by the time the preliminary injunction motion is filed, the Ninth Circuit held no injunction can issue due to mootness. The court of appeals went further though and spoke in constitutional terms: Article III requires a case or controversy which doesn't exist if the behavior has stopped. That reasoning seems to confuse remedial relief with subject matter jurisdiction. If no injunction was requested, there would be a case or controversy from the infringement claim. The fact that the activity has stopped may (but as we shall see below need not) argue against the need for a preliminary injunction, the constitutional controversy remains. The court wasn't suggesting dismissing the case entirely, but I am a bit baffled by its belief that it lacked constitutional power to issue an injunction in such circumstances.
Where there is a possibility that the infringing activity can be repeated, the court held that defendant's mere promise not to infringe is insufficient, by itself, not to issue an injunction, and that is one area in which the court reversed, holding: "Voluntary cessation of challenged conduct moots a case ... only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." This argument is frequently made by defendants, and the Ninth Circuit's strong stance on the issue should prove helpful.
The final aspect of injunctive relief was the decision whether to issue what is called a "mandatory injunction." This type of injunction does not seek to preserve the status quo pending a determination on the merits, but instead effectively seeks the ultimate relief sought in the suit. For this reason, mandatory injunctions are disfavored and were by the Ninth Circuit in LGS. (In the LGS case, plaintiff sought the return of the allegedly infringing architectural plans used to build unauthorized homes).
Tuesday, January 17, 2006
Martin Luther King, Jr.
I had wanted to post this yesterday, but a combination of nature and Connecticut Light & Power's incompetence resulted in my being without power from Saturday night to late Monday night, and that was the least of the problems caused by the storm. It will be some time and many thousands of dollars until things are back to normal.
Among the many things written about Dr. King's birthday, only one article I saw, in the Washington Post, dealt with the copyright issues over his "I had a Dream Speech, and then briefly. In 1963, a district judge in the Southern District of New York engaged in pretzel-like contortions to avoid fofeiture, King v. Mister Maestro, Inc., 224 F. Supp. 101 (S.D.N.Y. 1963). A more results-oriented law and facts be damned opinion would be hard to find.
A rational view on this subject was expressed by the trial court in Estate of Martin Luther King Jr. Inc. v. CBS Inc., 13 F. Supp.2d 1347 (N.D. Ga. 1998), which held that the speech was in the public domain through general publication without notice. Citing the fact that King had (understandably) encouraged the widest possible press coverage and dissemination of copies of the speech (and without limitation on reproduction), the Georgia trial court rightly characterized these activities as "almost epitomiz[ing] the definition of a general publication." The opinion was not, though, free of error; in particular, the trial court mistakenly considered the public performance of the speech as a factor pointing toward a general publication. This was reversible error, and indeed, the Eleventh Circuit subsequently reversed.
The majority opinion in the Eleventh Circuit, by Chief Judge Anderson, was careful to note that its decision took place in the context of the district court's grant of summary judgment in favor of defendant, CBS. CBS could, the court observed, still prevail on general publication grounds if certain facts involving authorized publication were established. Nevertheless, there was more than enough in the record to support the district court's decision: the distribution of multiple copies of King's speech to members of the press, without notice, and without restriction on its further distribution, clearly resulted in a general publication. The court of appeals expressed concern that "an author whose message happens to be newsworthy" should not be forced "to choose between obtaining news coverage for his work and preserving his common-law copyright." Dr. King could, however, have easily accomplished both goals by restricting further distribution of copies. Or, alternatively, he could have opted for the widest possible dissemination and federal protection merely by placing a copyright notice on the copies. The court of appeals' solicitude for Dr. King is understandable (although why this sympathy should extend to his estate is unclear, given its rather aggressive commercial practices), but its stretching of the boundaries of the law should still be criticized.
Among the many things written about Dr. King's birthday, only one article I saw, in the Washington Post, dealt with the copyright issues over his "I had a Dream Speech, and then briefly. In 1963, a district judge in the Southern District of New York engaged in pretzel-like contortions to avoid fofeiture, King v. Mister Maestro, Inc., 224 F. Supp. 101 (S.D.N.Y. 1963). A more results-oriented law and facts be damned opinion would be hard to find.
A rational view on this subject was expressed by the trial court in Estate of Martin Luther King Jr. Inc. v. CBS Inc., 13 F. Supp.2d 1347 (N.D. Ga. 1998), which held that the speech was in the public domain through general publication without notice. Citing the fact that King had (understandably) encouraged the widest possible press coverage and dissemination of copies of the speech (and without limitation on reproduction), the Georgia trial court rightly characterized these activities as "almost epitomiz[ing] the definition of a general publication." The opinion was not, though, free of error; in particular, the trial court mistakenly considered the public performance of the speech as a factor pointing toward a general publication. This was reversible error, and indeed, the Eleventh Circuit subsequently reversed.
The majority opinion in the Eleventh Circuit, by Chief Judge Anderson, was careful to note that its decision took place in the context of the district court's grant of summary judgment in favor of defendant, CBS. CBS could, the court observed, still prevail on general publication grounds if certain facts involving authorized publication were established. Nevertheless, there was more than enough in the record to support the district court's decision: the distribution of multiple copies of King's speech to members of the press, without notice, and without restriction on its further distribution, clearly resulted in a general publication. The court of appeals expressed concern that "an author whose message happens to be newsworthy" should not be forced "to choose between obtaining news coverage for his work and preserving his common-law copyright." Dr. King could, however, have easily accomplished both goals by restricting further distribution of copies. Or, alternatively, he could have opted for the widest possible dissemination and federal protection merely by placing a copyright notice on the copies. The court of appeals' solicitude for Dr. King is understandable (although why this sympathy should extend to his estate is unclear, given its rather aggressive commercial practices), but its stretching of the boundaries of the law should still be criticized.
Friday, January 13, 2006
The Other Munich Movie
In today's The Wall Street Journal's "Weekend Journal" section there is an article by Jon Weinbach, entitled "The Other Munich movie" (p.W4). As the article begins, "Nearly everyone who's seen Steven Spielberg's 'Munich' seems to have a strong opinion about the movie." My own view is strongly negative, and of his screenwriter, unprintable. But as Mr. Weinbach points out, "Now there's something else to add to the discussion: It turns out there was a cable-TV movie made 20 years ago about the same historical events, and some people involved in that production say the Spielberg movie is getting too much credit for originality."
The earlier film is called "The Sword of Gideon" (with Steven Bauer, Michael York, Rod Steiger, and Colleen Dewhurst). It too "focuses on an Israeli agent named Avner who faces a crisis of conscience after helping assassinate Palestinians believed to be behind the Munich slayings." The article points out other similarities, but importantly notes that similarities should be expected because both films are based on the same 1984 book, "Vengeance," by George Jonas, as well as, to some extent, the actual events.
But beyond this, there are some less explainable similarities, including details not found in the book and certain camera angles. Robert Lantos, producer of "Sword of Gideon," is quoted as saying "some parts of the current film are 'almost re-enactments' of his 1986 work. 'It's a testament to the cunning and foresight of Spielberg's publicity machine that 'Sword of Gideon' has not made it onto anyone's radar, he says."
Whether any of this would amount to infringement is highly doubtful, and the kvetching may just be jealousy. But if one truly wants foresight, consider that Universal, which has distribution rights to Munich, owns the film rights to "Vengeance" and the remake rights to Sword of Gideon.
The earlier film is called "The Sword of Gideon" (with Steven Bauer, Michael York, Rod Steiger, and Colleen Dewhurst). It too "focuses on an Israeli agent named Avner who faces a crisis of conscience after helping assassinate Palestinians believed to be behind the Munich slayings." The article points out other similarities, but importantly notes that similarities should be expected because both films are based on the same 1984 book, "Vengeance," by George Jonas, as well as, to some extent, the actual events.
But beyond this, there are some less explainable similarities, including details not found in the book and certain camera angles. Robert Lantos, producer of "Sword of Gideon," is quoted as saying "some parts of the current film are 'almost re-enactments' of his 1986 work. 'It's a testament to the cunning and foresight of Spielberg's publicity machine that 'Sword of Gideon' has not made it onto anyone's radar, he says."
Whether any of this would amount to infringement is highly doubtful, and the kvetching may just be jealousy. But if one truly wants foresight, consider that Universal, which has distribution rights to Munich, owns the film rights to "Vengeance" and the remake rights to Sword of Gideon.
Thursday, January 12, 2006
Sovereign Immunity
The Supreme Court yesterday did something doubly unusual: it issued an opinion rejecting a state's claim to sovereign immunity and did so in a unanimous opinion, written by Justice Scalia. The case is Goodman v. Georgia. The state of Georgia has been one of the most extreme advocates of sovereign immunity, and I had first hand experience with it in a copyright infringement suit I filed against the state on behalf of a software company that designed its web portal.
The Court's decision yesterday refers to its infamous Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) opinion, which seemingly spelled the end of most efforts to hold states accountable in money damages for copyright and patent infringement. I have long been scandalized by the Court's sovereign immunity case law, which I regard as a power grab at the expense of Congress, and one in which, Peanuts like, a football is put down only to be removed at the last minute. When I worked for Congress, staffers fantasized about passing the same legislation repeatedly, each time curing each of the Court's phony excuses for striking the legislation down (e.g., not enough witnesses, not enough evidence of infringement by states). Whether this would have been an effective tactic or not (given Marbury v. Madison), we at least would have been in the Court's face and would have been telling it we were an equal branch of government that would not be lectured to.
Yesterday's decision offers no solace to intellectual property owners, alas. The basis for the decision was the Court's belief that whatever may be the scope of the "prophylactic" enforcement powers of Congress under Section 5 of the 14th Amendment (something there is a split about), there is no disagreement that Section 5 can authorize Congress to provide for money damages against states for direct violations of the substantive provisions of 14th Amendment. In the case at bar, since the 14th Amendment incorporates the 8th Amendment's ban on cruel and unusual punishment, a claim for violation of the 8th Amendment provided a constitutionally sound basis for a damages claim.
Copyright infringement actions, however, seek to vindicate only statutory rights, and thus do not benefit from yesterday's decision.
The Court's decision yesterday refers to its infamous Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) opinion, which seemingly spelled the end of most efforts to hold states accountable in money damages for copyright and patent infringement. I have long been scandalized by the Court's sovereign immunity case law, which I regard as a power grab at the expense of Congress, and one in which, Peanuts like, a football is put down only to be removed at the last minute. When I worked for Congress, staffers fantasized about passing the same legislation repeatedly, each time curing each of the Court's phony excuses for striking the legislation down (e.g., not enough witnesses, not enough evidence of infringement by states). Whether this would have been an effective tactic or not (given Marbury v. Madison), we at least would have been in the Court's face and would have been telling it we were an equal branch of government that would not be lectured to.
Yesterday's decision offers no solace to intellectual property owners, alas. The basis for the decision was the Court's belief that whatever may be the scope of the "prophylactic" enforcement powers of Congress under Section 5 of the 14th Amendment (something there is a split about), there is no disagreement that Section 5 can authorize Congress to provide for money damages against states for direct violations of the substantive provisions of 14th Amendment. In the case at bar, since the 14th Amendment incorporates the 8th Amendment's ban on cruel and unusual punishment, a claim for violation of the 8th Amendment provided a constitutionally sound basis for a damages claim.
Copyright infringement actions, however, seek to vindicate only statutory rights, and thus do not benefit from yesterday's decision.
Tuesday, January 10, 2006
In Praise of Imitation
My college degrees are in music theory and composition, the "and" signifying that I both analyzed what the greats had done and wrote my own pieces. These two processes were, however, rarely separate: much of what I composed was an imitation of what I was studying, and I went through compositional fads related to my then-current theoretical interest. When I was infatuated with the Second Viennese School of Schoenberg, Berg, and Webern, I wrote music with twelve-tone rows, and not being original, I used one of theirs. When later I was into the avant-garde Polish music of Penderecki and Lutoslwaski, I tried to write like them.
I eventually stopped composing because I came to the conclusion that I had no authentic voice of my own (although I still play an instrument, clarinet). I concluded all I could summon was a weak imitation of others' voices. I sometimes wish I had kept at it, not out of a belief I would have gotten better, but for the sincere joy of it. Yet, I realized then, as now, that as Oscar Wilde quipped, "all bad poetry is sincere," and as we shall see, he should know.
The fear of influence in music is well-documented, including Brahms' complaint of Beethoven "dogging" his footsteps, and the unflattering comparison of his music to Beethoven's. In literature, Harold Bloom wrote a classic book in 1967, published in 1973, called The Anxiety of Influence. On pages 5-6, Bloom writes:
"My concern is only with the strong poets, major figures with the persistence to wrestle with their strong precursors, even to the death. Weaker talents idealize; figures of capable imagination appropriate for themselves. But nothing is got for nothing and, and self-appropriation involves immense anxieties of indebtedness, for what strong maker desires the realization that he has failed to create himself? Oscar Wilde, who knew he had failed as a poet because he lacked strength to overcome his anxiety of influence, knew also the darker truths concerning influence."
In Benjamin Kaplan's The Uneasy Case for Copyright, he states: "Copyright is in danger of stifling such wrestling with ourselves and with our predecessors: by seizing on all appropriation as a legal -- and moral-- shortcoming -- we fail to appreciate the creative process, and will end up the poorer for it." He also refers to a natural right to imitate, a nice twist on the different way the term "natural rights" is used in copyright discourse.
Copyright is often cast as a battle between creators and users, but more importantly, it involves issues with other authors, and within ourselves. We will be poorer, as Kaplan noted and as Bloom cautioned, if we don't facilitate the working out of creative anxieties.
I eventually stopped composing because I came to the conclusion that I had no authentic voice of my own (although I still play an instrument, clarinet). I concluded all I could summon was a weak imitation of others' voices. I sometimes wish I had kept at it, not out of a belief I would have gotten better, but for the sincere joy of it. Yet, I realized then, as now, that as Oscar Wilde quipped, "all bad poetry is sincere," and as we shall see, he should know.
The fear of influence in music is well-documented, including Brahms' complaint of Beethoven "dogging" his footsteps, and the unflattering comparison of his music to Beethoven's. In literature, Harold Bloom wrote a classic book in 1967, published in 1973, called The Anxiety of Influence. On pages 5-6, Bloom writes:
"My concern is only with the strong poets, major figures with the persistence to wrestle with their strong precursors, even to the death. Weaker talents idealize; figures of capable imagination appropriate for themselves. But nothing is got for nothing and, and self-appropriation involves immense anxieties of indebtedness, for what strong maker desires the realization that he has failed to create himself? Oscar Wilde, who knew he had failed as a poet because he lacked strength to overcome his anxiety of influence, knew also the darker truths concerning influence."
In Benjamin Kaplan's The Uneasy Case for Copyright, he states: "Copyright is in danger of stifling such wrestling with ourselves and with our predecessors: by seizing on all appropriation as a legal -- and moral-- shortcoming -- we fail to appreciate the creative process, and will end up the poorer for it." He also refers to a natural right to imitate, a nice twist on the different way the term "natural rights" is used in copyright discourse.
Copyright is often cast as a battle between creators and users, but more importantly, it involves issues with other authors, and within ourselves. We will be poorer, as Kaplan noted and as Bloom cautioned, if we don't facilitate the working out of creative anxieties.
Monday, January 09, 2006
Going Ape Over King Kong
As Peter Jackson's ode to animal love closes in on $200 million in B.O. (as the trades call it), not far off are the inevitable infringement suits brought by forelorn scriptwriters who had previously given their manuscript to someone who knows someone who said Peter would be interested. A January 8, 2006 article in the Los Angeles Times provides a wrinkle on the defense of such suits: the existence of an earlier gorilla craze in the 1920s and 1930 (arising out of Teddy Roosevelt's African safari), in particular "Ingagi," which predated by three years Merian Cooper and Ernest Schoedsack's "King Kong."
Ingagi was released, appropriately by Congo Pictures Ltd. The ads for the film stated it was based on an expedition to the Congo by Sir Hubert Winstead of the Royal Geological Society. In Chicago's Garrick Theatre, large crowds were drawn by "lurid lobby advertising depicting a gorilla fondling a near-nude native woman." This not suprisingly led to problems with the Hays Office censorship enforcers, causing the films' producers to state that "Sex perversion or any inference of it is forbidden," along with a ban on "complete nudity." This only helped to draw viewers. The documentary nature of the film was later shown to be fradulent.
In the movie, a bare-breasted woman is carried off by a gorilla who is shot, thereby foreclosing its ability to climb the Empire State Building. Other women are depicted as willing mates of gorillas. The LA Times article concludes:
"Although Merian C. Cooper never listed 'Ingagi' among his influences for
'King Kong,' it's long been held that RKO green-lighted 'Kong,' despite the
studio having fallen into receivership in the midst of the Depression, because
the bottom-line example of 'Ingagi': Gorillas plus sexy women in peril equals
enormous profits. And it that was indeed the case, there's no doubt that
'King Kong' was by far the best thing to be spawned by 'Ingagi."
Ingagi was released, appropriately by Congo Pictures Ltd. The ads for the film stated it was based on an expedition to the Congo by Sir Hubert Winstead of the Royal Geological Society. In Chicago's Garrick Theatre, large crowds were drawn by "lurid lobby advertising depicting a gorilla fondling a near-nude native woman." This not suprisingly led to problems with the Hays Office censorship enforcers, causing the films' producers to state that "Sex perversion or any inference of it is forbidden," along with a ban on "complete nudity." This only helped to draw viewers. The documentary nature of the film was later shown to be fradulent.
In the movie, a bare-breasted woman is carried off by a gorilla who is shot, thereby foreclosing its ability to climb the Empire State Building. Other women are depicted as willing mates of gorillas. The LA Times article concludes:
"Although Merian C. Cooper never listed 'Ingagi' among his influences for
'King Kong,' it's long been held that RKO green-lighted 'Kong,' despite the
studio having fallen into receivership in the midst of the Depression, because
the bottom-line example of 'Ingagi': Gorillas plus sexy women in peril equals
enormous profits. And it that was indeed the case, there's no doubt that
'King Kong' was by far the best thing to be spawned by 'Ingagi."
Friday, January 06, 2006
Now that's a Kiss
As we await the Second Circuit's opinion in the Martignon case (and I await it with great trepidation), all has not been quiet with the bootleg statute (17 USC 1101). Readers will recall that there was a civil challenge in Kiss Catalog, Ltd. v. Passport Int'l Prods., 350 F. Supp.2d 823 (C.D. Cal. 2004), by Judge Rea. Judge Rea's opinion was, in my view, not much more than a warmed-over rehashing of Judge Baer's atrocious handiwork in the Martignon case.
After Judge Rea's opinion, the United States, which was not a party to the Kiss case, and was not aware of it, sought leave to intervene, and then for reconsideration. Judge Rea granted the request and then died. The case was transferred to Judge Dale Fischer, who handed down his opinion on the motion for reconsideration on December 21, 2005. He found the statute to be constitutional.
The opinion began with a whopper of an error which made me worried: that Congress believed it was acting under the Copyright Clause. Whatever one may think of the merits of the provision, that is simply false. There is no doubt we knew we were legislating under the Commerce Clause. Graciously, however, Judge Fischer indicated that "Congress's intent is not dispositive;" he had an obligation to try and save us from ourselves by scouring the Constitution for authority we may have overlooked, like: the Commerce Clause. (That damn Article I is just too long for Congress to have noticed it, I guess).
Sarcasm aside, Judge Fischer did find that the provision is within Congress's Commerce Clause power, especially under Gonzales v. Raich, 125 L.Ed 2195 (2005) and Lopez. He went on to also discuss, in dicta, whether the statute is inconsistent with the Copyright Clause, and agreeing with the Government, held that nothing prohibits Congress from protecting similar things in different ways, "so long as the Constitution allows it do so," discussing Railway Labor Executives, and in any event finding no fundamental conflict because the subject matter of the two statutes is different.
While I wish some court, somewhere will understand that we always knew we were acting under the Commerce Clause, I am very happy with the outcome.
After Judge Rea's opinion, the United States, which was not a party to the Kiss case, and was not aware of it, sought leave to intervene, and then for reconsideration. Judge Rea granted the request and then died. The case was transferred to Judge Dale Fischer, who handed down his opinion on the motion for reconsideration on December 21, 2005. He found the statute to be constitutional.
The opinion began with a whopper of an error which made me worried: that Congress believed it was acting under the Copyright Clause. Whatever one may think of the merits of the provision, that is simply false. There is no doubt we knew we were legislating under the Commerce Clause. Graciously, however, Judge Fischer indicated that "Congress's intent is not dispositive;" he had an obligation to try and save us from ourselves by scouring the Constitution for authority we may have overlooked, like: the Commerce Clause. (That damn Article I is just too long for Congress to have noticed it, I guess).
Sarcasm aside, Judge Fischer did find that the provision is within Congress's Commerce Clause power, especially under Gonzales v. Raich, 125 L.Ed 2195 (2005) and Lopez. He went on to also discuss, in dicta, whether the statute is inconsistent with the Copyright Clause, and agreeing with the Government, held that nothing prohibits Congress from protecting similar things in different ways, "so long as the Constitution allows it do so," discussing Railway Labor Executives, and in any event finding no fundamental conflict because the subject matter of the two statutes is different.
While I wish some court, somewhere will understand that we always knew we were acting under the Commerce Clause, I am very happy with the outcome.
Thursday, January 05, 2006
Aharonian v. Gonzales
On January 3d, Judge Marilyn Patel of the Northern District of California (of Napster fame), handed down an opinion in Aharonian v. Gonzales, a pro se case brought by Gregory Aharonian seeking declarations that (1) computer source code consists entirely of algorithms and data structures considered by him to be unprotectible ideas or processes under 17 U.S.C. 102(b); (2) that "idea" and "expression" are unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment; and (3) that software is not covered by the Copyright Act.
Aharonian's interest (and what gave him standing, the court found, rejecting the Government's challenge on that point), was his development of an automated prior search tool that will assist in finding relevant prior art so that people may avoid patent and copyright infringement. His tool is to consist of three parts: (1) an expert system containing a programmatic representation of patent and copyright law; (2) a database of existing source code; (3) an analytical tool applying (1) to (2) to determine the likelihood of infringement or invalidity.
Judge Patel was troubled by the generalized nature of the attack on all software as consisting of ideas or algorithms. Relying, interestingly, on among other sources, Wikipedia, she noted the choices available to programmers in expressing their ideas, and on that basis rejected Aharonian's across-the-board challenge, further holding that if Ahaonian "copies source code that is protected by copyright law, he infringed the copyright regardless of whether the ideas underlying the source code are patentable."
The attack on idea (and "expression") as unconstitutionally vague was rebuffed with a flourish: while the terms are inexact, "the fact that words in a statute require a certain degree of judicial interpretation is not merely permissible -- it is bedrock assumption of our common law system."
Aharonian's interest (and what gave him standing, the court found, rejecting the Government's challenge on that point), was his development of an automated prior search tool that will assist in finding relevant prior art so that people may avoid patent and copyright infringement. His tool is to consist of three parts: (1) an expert system containing a programmatic representation of patent and copyright law; (2) a database of existing source code; (3) an analytical tool applying (1) to (2) to determine the likelihood of infringement or invalidity.
Judge Patel was troubled by the generalized nature of the attack on all software as consisting of ideas or algorithms. Relying, interestingly, on among other sources, Wikipedia, she noted the choices available to programmers in expressing their ideas, and on that basis rejected Aharonian's across-the-board challenge, further holding that if Ahaonian "copies source code that is protected by copyright law, he infringed the copyright regardless of whether the ideas underlying the source code are patentable."
The attack on idea (and "expression") as unconstitutionally vague was rebuffed with a flourish: while the terms are inexact, "the fact that words in a statute require a certain degree of judicial interpretation is not merely permissible -- it is bedrock assumption of our common law system."
Wednesday, December 28, 2005
Justice Rehnquist, Judge Alito, and Section 105
Among the papers released by the National Archives yesterday in connection with Judge Alito's nomination to the Supreme Court is one dealing with an advance on royalties Justice Rehnquist received for his 1986 book, "The Supreme Court, How it Was, How it Is." Here is a link to the memo then Deputy AG Alito wrote.
Aliot assumes that Renhquist worked on the book after hours and without using court personnel to help. Had the contrary been the case, a number of issues would have been raised, including, for copyright purposes, Section 105's ban on protection for "works of the United States Goverment," a term defined in Section 101 as "a work prepared by an officer or employee of the United States Government as part of that person's official duties."
It is highly unlikely Chief Justice Rehnquist's book was done as part of his official duties, but the term has been construed more broadly, as alluded to in the Alito memo. The book was certainly related to Rehnquist's official duties; it is, after all, a history of the very institution he headed. But that is not sufficient to place the work within Section 105.
While there are fortunate souls who have interests outside of their day job and actually follow them, many professionals blur if not eliminate the line between night and day, to invoke the old song. And, given the expertise gathered during the day, as a society, we benefit when such individuals use their off-the-clock time to write about their area of expertise.
The rub comes when government facilities or staff are used, even though the work was created off-hours. Should there be no protection as a penalty, or should other forms of redress be resorted to? In drafting Section 105, Register of Copyrights Abraham Kaminstein favored only some form of small administrative penalty, not loss of copyright.
Moreover, some use of government facilities is not only harmless but should be encouraged, such as use of libraries. And it is hard to say that use of a computer is usurpation of government resources. Photocopy machines are somewhat different, but all employers are aware that employees use them and requiring that employees leave the building and go to a commercial photocopying center is in no one's interest. It is only when other staff or significant resources are used that the issue of a penalty should arise.
Aliot assumes that Renhquist worked on the book after hours and without using court personnel to help. Had the contrary been the case, a number of issues would have been raised, including, for copyright purposes, Section 105's ban on protection for "works of the United States Goverment," a term defined in Section 101 as "a work prepared by an officer or employee of the United States Government as part of that person's official duties."
It is highly unlikely Chief Justice Rehnquist's book was done as part of his official duties, but the term has been construed more broadly, as alluded to in the Alito memo. The book was certainly related to Rehnquist's official duties; it is, after all, a history of the very institution he headed. But that is not sufficient to place the work within Section 105.
While there are fortunate souls who have interests outside of their day job and actually follow them, many professionals blur if not eliminate the line between night and day, to invoke the old song. And, given the expertise gathered during the day, as a society, we benefit when such individuals use their off-the-clock time to write about their area of expertise.
The rub comes when government facilities or staff are used, even though the work was created off-hours. Should there be no protection as a penalty, or should other forms of redress be resorted to? In drafting Section 105, Register of Copyrights Abraham Kaminstein favored only some form of small administrative penalty, not loss of copyright.
Moreover, some use of government facilities is not only harmless but should be encouraged, such as use of libraries. And it is hard to say that use of a computer is usurpation of government resources. Photocopy machines are somewhat different, but all employers are aware that employees use them and requiring that employees leave the building and go to a commercial photocopying center is in no one's interest. It is only when other staff or significant resources are used that the issue of a penalty should arise.
Reasonable Attorney's Fees
Section 505 of the Copyright Act permits (but does not require) the award of "reasonable" attorney's fees to the prevailing party (as part of costs). How does the court figure out what is "reasonable" and must there be an evidentiary hearing when reasonableness is disputed? On December 23d, the Second Circuit addressed these questions in a non-copyright (Section 1983 class action) case, Farbotko v. Clinton County (from the link go to "Decisions" and then "Current Month").
Plaintiff had requested fees of $200 and $250 an hour and presented evidence of the prevailing rates within the district. The District Court for the Northern District of New York) awarded attorney's fees at an hourly rate of $175 (and reduced the number of hours by 40% to reflect only partial success). No findings of fact or comment on plaintiff's evidence were made; the court apparently relied solely on the hourly awarded in other cases in the district.
In vacating, the Court of Appeals, per Judge Feinberg, noted that "a reasonable hourly rate is not itself a matter of binding precedent. Rather, ... a reasonable hourly rate is the 'prevailing market rate,' i.e., the rate 'prevailing in the [relevant] community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" A reasonable hourly rate "is not ordinarily ascertained simply by reference to rates awarded in prior cases." Instead, the court of appeals observed, the inquiry "contemplates a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel."
This leads to the question of how one determines that rate. Citing by analogy to a copyright case, Crescent Publishing Group, Inc. v. Playboy Enterprises, 246 F.3d 142, 147 (2d Cir. 2001), Judge Feinberg noted that "while not required in every case, an evidentiary hearing, or at the very least an opportunity to submit evidence, is necessary to determine the propriety of a fee award and the amount of such award if it is evident that the material facts necessary for those determinations are genuinely in dispute and cannot be resolved from the record."
For those of us who practice in the Southern District of New York, I should point out that the court noted that even for the rather straightforward type of 1983 action involved, the prevailing hourly rate in Manhattan is more than twice the rate in the Northern District of New York.
Plaintiff had requested fees of $200 and $250 an hour and presented evidence of the prevailing rates within the district. The District Court for the Northern District of New York) awarded attorney's fees at an hourly rate of $175 (and reduced the number of hours by 40% to reflect only partial success). No findings of fact or comment on plaintiff's evidence were made; the court apparently relied solely on the hourly awarded in other cases in the district.
In vacating, the Court of Appeals, per Judge Feinberg, noted that "a reasonable hourly rate is not itself a matter of binding precedent. Rather, ... a reasonable hourly rate is the 'prevailing market rate,' i.e., the rate 'prevailing in the [relevant] community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" A reasonable hourly rate "is not ordinarily ascertained simply by reference to rates awarded in prior cases." Instead, the court of appeals observed, the inquiry "contemplates a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel."
This leads to the question of how one determines that rate. Citing by analogy to a copyright case, Crescent Publishing Group, Inc. v. Playboy Enterprises, 246 F.3d 142, 147 (2d Cir. 2001), Judge Feinberg noted that "while not required in every case, an evidentiary hearing, or at the very least an opportunity to submit evidence, is necessary to determine the propriety of a fee award and the amount of such award if it is evident that the material facts necessary for those determinations are genuinely in dispute and cannot be resolved from the record."
For those of us who practice in the Southern District of New York, I should point out that the court noted that even for the rather straightforward type of 1983 action involved, the prevailing hourly rate in Manhattan is more than twice the rate in the Northern District of New York.
Tuesday, December 27, 2005
Augustine Birrell and Benjamin Kaplan
There have been, since the 17th century, many different types of works written about copyright: partisan petitions to Parliament, copyright treatises, and much later, law review articles and popular books. It is the extended lectures series I want to focus on, though, and two in particular. The first is Augustine Birrell's Seven Lectures on the Law and History of Copyright in Books, a selection from 18 lectures he delivered as a professor of law at University College, London in 1898 and then published as a book in 1899 (The link is to a 1971 reprinting by Fred B. Rothman).
Birrell (1850-1933), is a fascinating figure. He was called to the bar in 1875, and became a Queen’s Counsel in 1885. He was a member of Parliament beginning in 1889, representing West Fife, Scotland, as a Liberal. In the general election of 1900, his party made a strategic mistake by insisting he run from a district in the northeast of Manchester, resulting in his defeat. In 1906, he returned to Parliament, representing North Bristol, and also served as Minister of Education. In January 1907, he was became Chief Secretary of Ireland. That role was fraught with intense controversy, given Home Rule initiatives and tensions raised in the aftermath of World War I. Birrell put forth a number of initiatives, some of which were received well, others not. He was regarded as quite personally charming, but spent most of his time in London, and even when in Ireland, he was accused of “masterly inactivity,” particulary as regards the arming by Irish nationalists, and the events leading to the Easter Uprising that began on April 24, 1916. Birrell resigned right after the rebellion, and retired from public life. See generally Leon O’Brion, The Chief Secretary: Augustine Birrell in Ireland (Chatto & Windos, publishers, London 1969).
Aside from his political career, Birrell is best known not for his copyright lectures (and there is no evidence he had a long-standing or deep professional connection with the field), but for his widely published essays on literature. He was a witty, stylish writer, and his style quickly garnered him a wide audience. His first collection of essays, Obiter Dicta, was self-published in 1884, and much to his surprise went through six printings in the first year; his light touch of humor and irony gave rise to a new word “birrelling.” Of his legal writing, it has been said that his analysis was so clear that “solicitors complained that making the law so intellegible jeopardized their profession.” Among his admirers was Virginia Woolf, who called him a “born writer,” and who in 1930 published a favorable review of his work, “The Essays of Augustine Birrell.” Birell's son, Francis, was a member of the Bloomsbury Group. Birrell’s relationship with the Suffragette movement was much less favorable than his relationship with Woolf: on November 22, 1910, as a minister of the Government, he was attacked by a number of suffragettes, prompting Prime Minister Herbert Asquith to send Winston Churchill a letter requesting that legal action be taken against Birrell’s attackers.
The second lecture series I want to dicuss is Benjamin Kaplan's 1966 Carpentier Lectures at Columbia University, published in 1967 as An Unhurried View of Copyright. Professor Kaplan served as an illustrious professor of law at Harvard University, teaching many distinguished members of the bar, including Justice Breyer, whose views on copyright seem heavily influenced by his former professor. Kaplan later served on the Massachusetts Supreme Judicial Court.
There are currently annual copyright lectures, but these are one-offs, modern day speeches followed by a reception, and rarely of any impact beyond the event, if then (although there have been notable exceptions). The modern audience and perhaps modern lecturer, weaned on television, are not up for multiple nights of solid substance. Birrell and Kaplan's lectures were different, delivered as Professor Lloyd Weinreb has written, when "there was time not to be in a hurry." Both sets of lectures have had enduring influence, although in this country, Birrell is much less known, which is a shame. He is a witty, insightful writer who brought to bear on his subject the practical experience of a barrister and as a member of Parliament. Anyone who wants a clear-eyed look at early English copyright should start with Birrell.
Kaplan's book is well-known in this country but rarely read, in part because it has been out of print, in part because of a fondness of quoting favorite snippets without going through the trouble of reading the whole work. The out-of-print part has now blessedly been cured with the publication of a new edition by LexisNexis/Matthew Bender with the cooperation of the Suffolk University Law School Intellectual Property Law Concentration. Reading the whole work is still left up to the individual and is highly recommended: there has been a lamentable tendency among those favoring what is sometimes described as "thin" copyright to enlist Kaplan in the cause, just as Lord Macaulay's 1841 and 1842 speeches are similarly enlisted for the same purpose by the slightly more historically-inclined. Such snap-shots given a misleading impression of very full-rounded individuals. In Macaulay's case, he was one of the leading authors of his day and supportive of copyright as a system: he was merely opposed to Talfourd's life plus 60 term proposal, and offered a shorter one: life plus 7 years or 42 years from publication. His speeches do contain expressions of what he viewed as the dangers of copyright but always with the recognition that, like democracy, it is the best alternative. Professor Kaplan may have had unease about some of the details, but not about the enterprise.
Reading these works in their full glory should restore them to the position they richly deserve. The reprint of Kaplan's work is with the same pagination as the original, and I pray it is produced by a photocopy-like process because the add-ons to the volume have a number of typos and editorial errors. The add-ons consist of a helpful glossary of terms, names, or cases referred to by Kaplan that might not be familiar to modern readers. Yet, for all their assistance, one encounters entries like this one, for Macaulay: "English historian and writer who proposed a tax on readers in order to give money to authors." This is an embarrassing faux pas: Macaulay was speaking, of course, metaphorically.
There are also a number of "Contributions by Friends," in a kind of appended Festschrift. I confess to a bias against such enterprises. They are rarely insightful about either the target of the Fest and tend heavily to more about the Schrifter. At best, they should be privately printed and distributed. In this case, the description of "Friends" is largely a misdecription: only a few of the contributors knew Kaplan or were students of his. An article about the DMCA appears to have been a recycled earlier effort with no effort at relevance to the task at hand. There are nice pieces by Kaplan's colleagues Arthur Miller and Lloyd Weinreb, and a piece by Roger Zissu of Fross Zelnick in New York City entitled: "Funny is Fair: The Case for According Increased Value to Humor in Copyright Fair Use Analysis," is excellent. Surprisingly, there is no biography of Professor Kaplan, an unfortunate omission. Some may not know he is still alive and active in his 90s. I could have done without an article or two (or more) in favor of some information about Kaplan himself. Maybe even an article that discusses, directly, the influence of his work through judicial opinions or prominent jurists like Justice Breyer; but alas, it is on the whole typical Festschrift fare; Chinese food without the flavor.
Yet, one can still be thankful for the reprinting of such a wonderful work, and I am. Highly recommended!
Birrell (1850-1933), is a fascinating figure. He was called to the bar in 1875, and became a Queen’s Counsel in 1885. He was a member of Parliament beginning in 1889, representing West Fife, Scotland, as a Liberal. In the general election of 1900, his party made a strategic mistake by insisting he run from a district in the northeast of Manchester, resulting in his defeat. In 1906, he returned to Parliament, representing North Bristol, and also served as Minister of Education. In January 1907, he was became Chief Secretary of Ireland. That role was fraught with intense controversy, given Home Rule initiatives and tensions raised in the aftermath of World War I. Birrell put forth a number of initiatives, some of which were received well, others not. He was regarded as quite personally charming, but spent most of his time in London, and even when in Ireland, he was accused of “masterly inactivity,” particulary as regards the arming by Irish nationalists, and the events leading to the Easter Uprising that began on April 24, 1916. Birrell resigned right after the rebellion, and retired from public life. See generally Leon O’Brion, The Chief Secretary: Augustine Birrell in Ireland (Chatto & Windos, publishers, London 1969).
Aside from his political career, Birrell is best known not for his copyright lectures (and there is no evidence he had a long-standing or deep professional connection with the field), but for his widely published essays on literature. He was a witty, stylish writer, and his style quickly garnered him a wide audience. His first collection of essays, Obiter Dicta, was self-published in 1884, and much to his surprise went through six printings in the first year; his light touch of humor and irony gave rise to a new word “birrelling.” Of his legal writing, it has been said that his analysis was so clear that “solicitors complained that making the law so intellegible jeopardized their profession.” Among his admirers was Virginia Woolf, who called him a “born writer,” and who in 1930 published a favorable review of his work, “The Essays of Augustine Birrell.” Birell's son, Francis, was a member of the Bloomsbury Group. Birrell’s relationship with the Suffragette movement was much less favorable than his relationship with Woolf: on November 22, 1910, as a minister of the Government, he was attacked by a number of suffragettes, prompting Prime Minister Herbert Asquith to send Winston Churchill a letter requesting that legal action be taken against Birrell’s attackers.
The second lecture series I want to dicuss is Benjamin Kaplan's 1966 Carpentier Lectures at Columbia University, published in 1967 as An Unhurried View of Copyright. Professor Kaplan served as an illustrious professor of law at Harvard University, teaching many distinguished members of the bar, including Justice Breyer, whose views on copyright seem heavily influenced by his former professor. Kaplan later served on the Massachusetts Supreme Judicial Court.
There are currently annual copyright lectures, but these are one-offs, modern day speeches followed by a reception, and rarely of any impact beyond the event, if then (although there have been notable exceptions). The modern audience and perhaps modern lecturer, weaned on television, are not up for multiple nights of solid substance. Birrell and Kaplan's lectures were different, delivered as Professor Lloyd Weinreb has written, when "there was time not to be in a hurry." Both sets of lectures have had enduring influence, although in this country, Birrell is much less known, which is a shame. He is a witty, insightful writer who brought to bear on his subject the practical experience of a barrister and as a member of Parliament. Anyone who wants a clear-eyed look at early English copyright should start with Birrell.
Kaplan's book is well-known in this country but rarely read, in part because it has been out of print, in part because of a fondness of quoting favorite snippets without going through the trouble of reading the whole work. The out-of-print part has now blessedly been cured with the publication of a new edition by LexisNexis/Matthew Bender with the cooperation of the Suffolk University Law School Intellectual Property Law Concentration. Reading the whole work is still left up to the individual and is highly recommended: there has been a lamentable tendency among those favoring what is sometimes described as "thin" copyright to enlist Kaplan in the cause, just as Lord Macaulay's 1841 and 1842 speeches are similarly enlisted for the same purpose by the slightly more historically-inclined. Such snap-shots given a misleading impression of very full-rounded individuals. In Macaulay's case, he was one of the leading authors of his day and supportive of copyright as a system: he was merely opposed to Talfourd's life plus 60 term proposal, and offered a shorter one: life plus 7 years or 42 years from publication. His speeches do contain expressions of what he viewed as the dangers of copyright but always with the recognition that, like democracy, it is the best alternative. Professor Kaplan may have had unease about some of the details, but not about the enterprise.
Reading these works in their full glory should restore them to the position they richly deserve. The reprint of Kaplan's work is with the same pagination as the original, and I pray it is produced by a photocopy-like process because the add-ons to the volume have a number of typos and editorial errors. The add-ons consist of a helpful glossary of terms, names, or cases referred to by Kaplan that might not be familiar to modern readers. Yet, for all their assistance, one encounters entries like this one, for Macaulay: "English historian and writer who proposed a tax on readers in order to give money to authors." This is an embarrassing faux pas: Macaulay was speaking, of course, metaphorically.
There are also a number of "Contributions by Friends," in a kind of appended Festschrift. I confess to a bias against such enterprises. They are rarely insightful about either the target of the Fest and tend heavily to more about the Schrifter. At best, they should be privately printed and distributed. In this case, the description of "Friends" is largely a misdecription: only a few of the contributors knew Kaplan or were students of his. An article about the DMCA appears to have been a recycled earlier effort with no effort at relevance to the task at hand. There are nice pieces by Kaplan's colleagues Arthur Miller and Lloyd Weinreb, and a piece by Roger Zissu of Fross Zelnick in New York City entitled: "Funny is Fair: The Case for According Increased Value to Humor in Copyright Fair Use Analysis," is excellent. Surprisingly, there is no biography of Professor Kaplan, an unfortunate omission. Some may not know he is still alive and active in his 90s. I could have done without an article or two (or more) in favor of some information about Kaplan himself. Maybe even an article that discusses, directly, the influence of his work through judicial opinions or prominent jurists like Justice Breyer; but alas, it is on the whole typical Festschrift fare; Chinese food without the flavor.
Yet, one can still be thankful for the reprinting of such a wonderful work, and I am. Highly recommended!
Thursday, December 22, 2005
The Marx Brothers: Copyright Recidivists
The trademark dispute between the Brothers Warner and Marx has become an iconic example of the little guy winning over the over-reaching corporation and doing so with wit. Here is a link to the first of Groucho's letters (and which also includes links to other sites about the Marx Brothers and other comedy teams). The tiff involved the Marx Brothers' "Night in Casablanca" and Warners' "Casablanca."
The Marx Brothers were sued a number of times for copyright infringement, once under a criminal count. That case, Marx Brothers v. United States, 96 F.2d 204 (9th Cir. 1938), involved infringing and aiding and abetting the infringement of a radio script by Garrett and Carol Graham ("The Hollywood Adventures of Mr. Dibble and Mr. Dabble"). The Marx Brothers had met with the Grahams, and expressed an interest in the script; changes were made at the Marx Brothers' request. The Marx Brothers testified that they subsequently forgot about the work and that when the copyright owner's "gag man" (one Boasberg) gave them the script to use on the radio, they assumed he was the author. A jury convicted them. One unique feature of the case is that it highlighted a flaw in the 1909 Act: the failure to specify the term of protection for unpublished registered with the Copyright Office under Section 12. The Ninth Circuit read into the act the term for published works (28+28), measured from the date of registration.
In the same year, in a civil case, Clancy v. MGM, 37 USPQ 406 (S.D.N.Y. 1938), plaintiff's play "Nuts to You" was not found substantially similar to the boys' "A Day at the Races," even though both works had in common a veterinarian who runs a sanitarium and owns a race horse: no dialogue or other plot elements were taken, however.
A Day at the Races was, however, found by a jury to have infringed a scenario called "High Fever," a judgment upheld the following year in a California state court, Barsha v. MGM, 32 Cal. App.2d 566. The appellate opinion contains a lengthy list of alleged similarities, which were found sufficient to uphold the jury's finding.
The Marx Brothers were sued a number of times for copyright infringement, once under a criminal count. That case, Marx Brothers v. United States, 96 F.2d 204 (9th Cir. 1938), involved infringing and aiding and abetting the infringement of a radio script by Garrett and Carol Graham ("The Hollywood Adventures of Mr. Dibble and Mr. Dabble"). The Marx Brothers had met with the Grahams, and expressed an interest in the script; changes were made at the Marx Brothers' request. The Marx Brothers testified that they subsequently forgot about the work and that when the copyright owner's "gag man" (one Boasberg) gave them the script to use on the radio, they assumed he was the author. A jury convicted them. One unique feature of the case is that it highlighted a flaw in the 1909 Act: the failure to specify the term of protection for unpublished registered with the Copyright Office under Section 12. The Ninth Circuit read into the act the term for published works (28+28), measured from the date of registration.
In the same year, in a civil case, Clancy v. MGM, 37 USPQ 406 (S.D.N.Y. 1938), plaintiff's play "Nuts to You" was not found substantially similar to the boys' "A Day at the Races," even though both works had in common a veterinarian who runs a sanitarium and owns a race horse: no dialogue or other plot elements were taken, however.
A Day at the Races was, however, found by a jury to have infringed a scenario called "High Fever," a judgment upheld the following year in a California state court, Barsha v. MGM, 32 Cal. App.2d 566. The appellate opinion contains a lengthy list of alleged similarities, which were found sufficient to uphold the jury's finding.
Wednesday, December 21, 2005
Early Musical Borrowing
In the 2 Live Crew case, the Supreme Court made a distinction between parody and satire. Because parody targets the original, it has a need, under fair use, to at least conjure up its target. Satire, defined as a broader, more socially, culturally, or politically-oriented spoof, was felt to not have the same need given that it is not directing its sole attention to a particular work. Satires are not precluded from fair use, but seemingly don't enjoy an initial leg-up that parodies have. There are other terms to connote a degree of appropriation from other works, but without a critical purpose. One such term is "imitation."
Lisa Pon explores imitation in Renaissance prints in her excellent 2004 book "Raphael, Durer, and Marcantonio Raimondi: Copying and the Italian Renaissance Print." The origins of parody also lie in imitation, and originally the term did not connote criticism or even merriment. This topic is explored in another 2004 book called "Early Musical Borrowing" edited by the improbably named "Honey" Meconi and for the very steep price of $95.
As a music major, I immersed myself in the music of the Renaissance Netherlands composers (like Ockeghem) as well as Italians like Palestrina, and Josquin de Prez, all of whom wrote dozens of "parody masses," masses that used secular music as an integral part of the polyphony. There were also cantus firmus and paraphrase masses that were also built on others' works. The borrowing was right up front, in the titles like "L'Homme arme" and Tavener's "Western Wind" mass. As Professor Meconi notes, "Borrowing is probably almost as old as music itself, and Western notated music is replete with examples from every time period."
Given this rich history, what is unusual is the underlying thesis of Professor Meconi's collection that "major questions" have arisen about "what constitutes borrowing, how we define the different types in use, what we call them, and why and how composers borrowed what they did. These topics have been the subject of a fierce and impassioned debate; this is not a field for the faint of heart."
Oddly, that makes me feel better when we mere lawyers try to sort out fair use according to labels: we're not alone in difficulties.
Lisa Pon explores imitation in Renaissance prints in her excellent 2004 book "Raphael, Durer, and Marcantonio Raimondi: Copying and the Italian Renaissance Print." The origins of parody also lie in imitation, and originally the term did not connote criticism or even merriment. This topic is explored in another 2004 book called "Early Musical Borrowing" edited by the improbably named "Honey" Meconi and for the very steep price of $95.
As a music major, I immersed myself in the music of the Renaissance Netherlands composers (like Ockeghem) as well as Italians like Palestrina, and Josquin de Prez, all of whom wrote dozens of "parody masses," masses that used secular music as an integral part of the polyphony. There were also cantus firmus and paraphrase masses that were also built on others' works. The borrowing was right up front, in the titles like "L'Homme arme" and Tavener's "Western Wind" mass. As Professor Meconi notes, "Borrowing is probably almost as old as music itself, and Western notated music is replete with examples from every time period."
Given this rich history, what is unusual is the underlying thesis of Professor Meconi's collection that "major questions" have arisen about "what constitutes borrowing, how we define the different types in use, what we call them, and why and how composers borrowed what they did. These topics have been the subject of a fierce and impassioned debate; this is not a field for the faint of heart."
Oddly, that makes me feel better when we mere lawyers try to sort out fair use according to labels: we're not alone in difficulties.
Tuesday, December 20, 2005
Fair Use: The Source Copy
Should the fair use analysis be affected by whether the source from which the copy is made is authorized? The issue is a recurring one, and has taken on increased importance in the digital environment, but remains unsettled. In Time, Inc. v. Bernard Geis & Associates, 293 F. Supp. 130, 146 (S.D.N.Y. 1968), surreptious copies of stills from the Zapruder films of the John Kennedy assassination were made. While this troubled the court, the fact that defendant could have obtained the copies by other means was viewed as significant. This was particularly instructive since the court had earlier said that fair use "presupposes good faith and fair dealing," something that was entire absent in the case itself. By contrast, in Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 843 (Fed. Cir. 1992), the Federal Circuit took a harsh line on copying from unauthorized copies.
In Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985), defendant had knowing, unauthorized access to a temporarily "purloined" manuscript copy of Gerald Ford's then unpublished memoirs. Unlike in the Time-Geis case, unauthorized access was the only way to get access to the work "at the time." Before the district court, the purloined nature of the copy went into the mix of finding no fair use. Before the Supreme Court, the majority was also disturbed by the knowing copying from a purloined manuscript, while the dissent regarded it as a standard journalistic practice. These two views are not necessarily in conflict, but the key to Harper & Row is the fact that the work was intercepted on the way to being published: there was no effort by the copyright owner to suppress information.
The issue of the source of the source copy also takes place as part of a larger debate over the role, if any, of good faith in fair use analyses. Judge Pierre Leval of the Second Circuit, in his legendary 1990 Harvard Law review article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105, 1126-1128, argues strongly against good faith being a factor. In NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2d Cir. 2004), also involving unauthorized access to a manuscript, citing Harper & Row and my 1995 fair use treatise, Chief Judge John Walker, writing for the panel majority, held that district courts should consider whether bad faith is present in defendant's acts, but declined to follow the Federal Circuit's tough line, and noted that "even if the bad faith subfactor weights in plaintiff's favor, the first factor still favors defendant in light of the transformative nature of the secondary use as criticism." This seems right on target. Judge Jacobs, concurring, thought that "[b]ad faith is a slippery concept in the copyright context...," and noted that the purpose of the use in that case was to criticize plaintiff's work as "the pretentious nonsense of a cult."
One question in all good or bad faith determinations is good or bad faith as to what? What is the conduct that we wish to encourage or discourage?
In Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985), defendant had knowing, unauthorized access to a temporarily "purloined" manuscript copy of Gerald Ford's then unpublished memoirs. Unlike in the Time-Geis case, unauthorized access was the only way to get access to the work "at the time." Before the district court, the purloined nature of the copy went into the mix of finding no fair use. Before the Supreme Court, the majority was also disturbed by the knowing copying from a purloined manuscript, while the dissent regarded it as a standard journalistic practice. These two views are not necessarily in conflict, but the key to Harper & Row is the fact that the work was intercepted on the way to being published: there was no effort by the copyright owner to suppress information.
The issue of the source of the source copy also takes place as part of a larger debate over the role, if any, of good faith in fair use analyses. Judge Pierre Leval of the Second Circuit, in his legendary 1990 Harvard Law review article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105, 1126-1128, argues strongly against good faith being a factor. In NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2d Cir. 2004), also involving unauthorized access to a manuscript, citing Harper & Row and my 1995 fair use treatise, Chief Judge John Walker, writing for the panel majority, held that district courts should consider whether bad faith is present in defendant's acts, but declined to follow the Federal Circuit's tough line, and noted that "even if the bad faith subfactor weights in plaintiff's favor, the first factor still favors defendant in light of the transformative nature of the secondary use as criticism." This seems right on target. Judge Jacobs, concurring, thought that "[b]ad faith is a slippery concept in the copyright context...," and noted that the purpose of the use in that case was to criticize plaintiff's work as "the pretentious nonsense of a cult."
One question in all good or bad faith determinations is good or bad faith as to what? What is the conduct that we wish to encourage or discourage?
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