IPSC session 5

Session 5: Copyright
Michael Carroll, The
Law of Musical Borrowing: A concept of © distinctiveness is implicit in how we
talk about substantial similarity.  Who
decides this? It’s supposed to be the consumer: ordinary observer/intended
audience. Both TM and © are trying to figure out what’s going on in the mind of
the consumers. Distinctiveness plays a role in how juries/cts conceive of the
work, and it becomes troublesome.  Similar
to Bohannon’s idea of © harm/© dilution and criticism of the Dr. Seuss case but
more basic/using TM distinctiveness as a reference point.
A coherent theory of
© infringement analysis: you have to flip the filtration step; start w/idea
that the author came to a world full of nonoriginal elements as preexisting
materials. Originality is when they take that mix and do something original to
the author; how do we know when they’ve done that? When we can distinguish what
they’ve done from the background. It’s a bit Lockean.  It’s the elements of the work the audience attributes
to the author.
If that’s about the
work in suit, then you compare the accused work and look for the same elements.  If there is similarity, then is it substantial?
This isn’t extrinsic/intrinsic, but it’s the decision framework we implicitly
offer when we tell a jury to compare. 
Postmodern: not what the author thinks the work is, but what the jury
In music infringement,
there is a difference from other works. Value in popular works is in what’s
distinctive, and there can be distinctiveness w/o originality.  A distinctive/original voice, not just
someone who can sing on pitch.  A je ne
sais quoi, but highly desired. Data still can’t predict success—either there’s
something about the hook, or there’s payola. 
“Closing Time”: The distinctiveness comes from your hammered-in memory
even though the chord progression is common. 
James Brown’s scream at the opening of “I Feel Good”: distinctive, but
is it original expression?  No.  But from if value, then right perspective,
you’re definitely taking value from Brown’s recording.  6th Circuit/Bridgeport cases are
the worst offenders here.  Bridgeport v.
UMG: finds infringement in bow wow wow gimme yo gimme yay, Atomic Dog.  Blurred Lines case is the same thing, even
though the court excluded the sound recording from the evidence. 
Fishman’s proposal
is to judicially tailor scope of composition © to limit protection for
nonmelodic originality. Carroll prefers strengthening the role of limiting
doctrines, particularly idea/expression, scenes a faire, and de minimis
use.  This avoids over-attribution of
distinctiveness to nonmelodic elements of a composition.  He thinks Blurred Lines was troubling but an
outlier.  If we’re going to live in a
world of experts, experts will have to get better at describing scenes a faire
in particular to the court.
The kind of claim he
dislikes: the defendant repeated the same word/phrase I did and that’s
infringing.  In these cases, courts turn
out to prefer fair use (he’d prefer short words/phrases exclusion, de minimis
use, lack of substantial similarity in the whole work).  Jimmy Smith Rap case (jazz is the only real
music)/Last Poets (party and bullshit). 
Don’t even bother with the belt and suspenders!
Zahr Said: “distinctive”
does different thing in different places—misused in character cases all the
time; it can play a TM role.  Are you
stuck w/that word?  You identified a way
of defining originality w/more discipline. Jury instructions are doing that in
a pretty good way but using the word “original” which is confusing—can you find
something that’s not a term of art elsewhere? 
Using distinctiveness for infringement seems to be TM-like—in the bow
wow wow case, they’re protecting more of a TM interest than a © interest and
using “distinctive” entrenches that problem. 
Justin Hughes,
Actors as Authors
Clearly, a number of
dramatic performances cross the threshold for copyrightability [or at least the
works in which they are fixed do].  Still,
this isn’t set in the case law, allowing Google
v. Garcia
arguments to be made about how actors aren’t authors unless they
have creative control over the script/performance (as Garcia allegedly did
not).  Hasn’t been squarely raised b/c of
© Office compedium
lists 10 elements of a motion picture that may be sources of authorship, one of
which is performance: “the acting, speaking, singing, or dancing in a motion
picture.” Courts have occasionally recognize this in deciding other issues like
other authorial claimants and ROP claims/preemption of such claims by ©.
Performers really do
think they’re artists/creators.  So do
directors, except David Mamet.  Actors ad
lib a lot more than you think, including Bogart’s “Here’s looking at you, kid,”
DeNiro’s “You Talking to Me,” and Thor: Ragnarok [Also Wonder Woman’s great
scene b/t Diana and Steve in the boat]. 
Like jazz improv, where the fixation is occurring simultaneously. But
what do you do when there’s no ad libbing? 
Are you as comfortable finding copyrightable expression added to the script?  It may be the case that it needs to be viewed
as a zero-sum game.  Leeway given by
directors is much greater in AV works than it is in theater where there’s lots
of time for rehearsal.  Standard
challenge: joint authorship doesn’t mean equal shares are required given the
common law model.
Q: hard time
explaining why athletes are different.
A: don’t follow a
script, and are in a goal-oriented activity that is not a narrative activity;
maybe dancing is the closest. Improvisational dance v. baseball game—gut feeling
is there’s a difference, but Goldstein thinks no.
Samuelson: do the
contracts b/t motion picture cos and actors speak to this possibility of
A: yes.
Beebe: © in public
persona, once fixed?  Kim Kardashian,
Barton Beebe, etc. seems like they could all make claims.
A: don’t need to
solve persona; that seems like style—you can © every performance w/o being able
to © persona. [That seems to finesse the problem of derivative works.]
Matt Sag: Clint
Eastwood—is he a coauthor of the film or the author of a little subwork?
A: there’s © in the
dailies, of which the motion picture is built. If financing stopped on the film
and all they had was boxes of dailies, those are subject to ©. Garcia could
more credibly have claimed joint authorship in the daily, then integrated into
the larger work. That raises other interesting problems. Not sure that answers
the Q.
Jim Gibson: you say
author, but you really mean source of original creative expression, given that
it might be a WFH. Sound engineers, record producers?
A: those are recognized
as authors—SoundExchange is paying them and the Music Modernization Act will
codify their right to payment.
Tim McFarlin, Tear
Down the Stairway? Copyright Injunctions and the Public Interest
contributions are of concern: if the contribution has audience appeal, perhaps
that bears on authorship. If audience impact is important to authorship, where
else might it affect doctrine?  Data-driven
authorship is an example, and audience’s role in IP infringement (Fromer/Lemley).  What about eBay and the public interest factor in injunctive relief?
Discussion of
suppressive motives & their relation to injunctions.
To what extent is
nature/genesis of derivative work relevant? Willfulness, percentage of infringing
content, whether it’s close to fair use. 
Gilden argues that a stronger injunctive remedy may lead to more fair
use findings, whereas courts may be more willing to find infringement if
injunctions are rare.  If they are rare,
do we get compulsory licensing case by case? If not, are we unfairly
advantaging artist/works with a track record like Hitchcock over ones with out?  Do we define the public interest in the same
way across different kinds of IP?
Q: stronger laches
doctrine?  Could play into remedy.
Rosenblatt: if you
focus on the audience, don’t you risk content discrimination/Bleistein
A: true: hard to
measure something’s classic status.
Rosenblatt: that’s
not relevant; just consider how long it’s been out.
Van Houweling: Tasini
raises concerns about recency—the articles might be recent but might still make
holes in the record if removed.
Said: Stairway to
Heaven is a weird example b/c credit was also at issue—Salinger v. Colting is a
more interesting example of an enjoined then unenjoined non-classic.  What kind of First Amendment stand do you
want to take?

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