WIPIP SESSION 9.B. — Copyrights

Peter Lee, UC Davis School of Law

Autonomy, Copyright, and the Structure of Creative Production

Theory of the firm would suggest more consolidation within
the firm in creative industries than exists. But creative autonomy is one
reason that people would prefer not to be employees. © also has a role by
allowing credible transfers. Big caveat: © facilitates contractually mediated
vertical disintegration, but it does not guarantee creative autonomy; bargaining
power of artists matters a lot. As digital distribution increases, © will still
play an important role in promoting creative autonomy not by facilitating vertical
disintegration but by facilitating top-down vertical integration, bypassing
traditional intermediaries. But power disparities will continue to matter for creative
autonomy.

Derek Miller: Historically, where does © affect the firm?
How do you show the causal story? Not all works are vertically disintegrated—the
Marvel Universe is horizontally structured, controlled by WFH. Actors are
disintegrated from the Hollywood system they used to live under but have
basically no © power—so how do they fit in?

A: don’t have much historical lens. Some other work suggests
© leads to greater autonomy. Composers may have broadened composition styles in
response to ©/market participation. [In chat, Derek Miller finds those studies
unconvincing; © control by composers was difficult/complex, and they built
other forms of patronage, often by subscription.] Disney is an outlier. Did
acquire Marvel, which started independently. Actors: Justin Hughes has a really
nice piece on actors’ ©able contributions, but they don’t often leverage them to
enhance autonomy. There are other factors to autonomy, including powerful
guilds that can serve that function.

Eric Goldman: consider the entire distribution chain and
what’s going on in terms of vertical/horizontal integration in each element.
YouTubers: distributor/author relationship is entirely different than old
model, and not clear © is the driver.

Jessica Silbey: Consider whether Tasini expansion of author
rights led to more or less dis-integration. Different ideas of how private
ordering works in © may affect the story.

Betsy Rosenblatt: consider, e.g., how over the top TV
services are affecting industry structure. Relationship to social justice? Has
a piece on Nipsy Hustle and ©–creative autonomy piece would fit well into
that, particularly for musicians in the age of the 360 deal.

Lisa Macklem: Consider foreign distribution as well, and
Lemley’s piece on how Disney is creating new scarcity for the first time in a
while.

Giovanni Maria Riccio, University of Salerno (with Federica
Pezza)

Conservation and Restoration of Street Art: Striking the
Line Between Protectable Common Goods and Inadmissible Musealization of Urban
Spaces

Art in public spaces: Not “public art” a la totalitarian
regimes, but works in public spaces that are freely accessible to the public
regardless of the form of expression. Site specific, connected to local
communities, with political or social meaning. Questions: who owns ©? Who owns
the work? (Options: owner of the support, e.g. the building; the commissioning
party; the municipality; the people who “live” the work?) What are options for
conservation, restoration, and preservation? Should consider public space art,
in some circumstances, as a common good, with ownership interests at least in
part in people who live in the area. Focus on the work and its meaning more
than on the subjects and their rights.

Pezza: Civil law legal systems don’t require fixation; UK CDPA
requires works to be “recorded”; US requires fixation. Edge cases: makeup, assemblages
(Oasis cover photo shoot case), carved ice. UK has a closed list of subject
matter; you can’t protect something that isn’t on the list. The assemblage of
objects in Oasis—difficult to ID what the subject matter was.

Unclean hands? European theory: Commission of unlawful act
[like placing art w/o permission] may not result in loss of patrimonial
benefits deriving from exploitation of the work. Failure to grant © would
sanction the author 2x, in addition to the typical penalty for the crime
committed. US may apply unclean hands: Villa v. Pearson Education (N.D. Ill.
2003). But practical differences may be narrow.

Riccio: Consider Convention Concerning Protection of World
Cultural Heritage, UNESCO. Intangible cultural heritage includes artefacts and
cultural spaces associated therewith that communities, groups, and in some
cases individuals recognize as part of their cultural heritage—should not be
excluded from access. Is VARA the only possible solution? Time consuming for
owner, transaction costs are moved on owner though they didn’t commission the work;
often not easy to find author; all choices in authors’ hands. Proposal: before
proceeding with destruction or alteration of work, owner should communicate to
public authority which should have a period of time to decide whether the work
should be protected or not. Silence should be consent. Decisions should be made
by experts, art curators, artists, local residents. Public calls for street art
made by public entities should include information about
conservation/restoration.

Zvi Rosen: reminded him of riparian rights—not at all what you
propose, but might be interesting comparison.

Justin Koo, University of the West Indies, St Augustine

Protecting Works of Mas – Contemplating the Protection of
Carnival Costumes

Are Carnival costumes w/in scope of ©? “King” costumes are
the most elaborate and fanciful. More typical, esp. for women: a swimsuit with
decorations attached; can get more elaborate with feathers and design elements.
Crosses the originality threshold in many cases. But is it the right type of
subject matter for ©? © attaches without registration and endures for much
longer than design rights. Star Athletica: can it be conceived of as
something other than a costume?

Tyler Ochoa: Thinks that these were probably easily
registrable even pre-Star Athletica because of nonfunctionality. [But is
there separability?] But what is the problem we’re trying to solve here—what harm
will happen if we don’t protect these costumes with ©? Not sure he sees a huge
problem.

A: He’s interested in whether it meets the standard, and
also whether it would create a problem with future costumes/a licensing culture.

Rosenblatt: worth asking who © would benefit, which might
not be anyone in Trinidad—the risks you discuss seem greater than benefits. Enforcement
becomes a problem when it contradicts a history/culture. Would also be
interested in what the cultural norms are: are there anti-copying/divergence
expectations? Are most of the producers doing individual hand made works or are
there big commercial producers?

A: it’s all decentralized, independent designers and
creators. Every year there are disputes, but never any litigation.

Rosenblatt: shaming based? Yes.

A: also note that with the Stormtrooper Lucasfilm decision
in the UK, the US approach is not guaranteed.

Derek Miller, Harvard University Faculty of Arts and Science

On Typographical Copyright, with Examples from Modern Drama

Typography includes layout, spacing, font; format is physical
like book, ebook. Typographical variation: headings, italics, small caps, even
the numbering of a page. Experimental scripts have even more variation. Plays that
are expansive in typography often involve author specified layouts, that are
reproducible in other formats. A “spell” by Suzan-Lori Parks; is “elongated and
heightened (rest) … has a sort of architectural feel.” The spell involves headers
with character names and no dialogue, repeated, e.g. Lincoln/Booth/Lincoln/Booth/Lincoln/Booth
with each name on a different line—but if reproduced incorrectly they can give
the wrong impression. Plays often circulate in different editions—reading editions,
acting editions, etc. Very few publishers print in all these formats. By
defining layouts, publisher can affect reception of a play. Modern ereaders can
strip away typography/allow individual readers to configure for their
preferences. What should a typographically conscious playwright do? Can we
reinvent IP norms to support their artistic intentions. Should permit some
typographical fluidity as texts change meaning but also allow authors to specify.
HTML/CSS can be a model—adaptable but typographically conscious. CSS allows reintepretation
of values such as distance b/t elements while retaining the relationships among
different parts. © currently focuses on html only, text of the work. But we can
protect a work as CSS too if it’s describable in an abstract, reproducible form
like CSS.

Eric Goldman: personal passion, emojis, might play into
this. Does PDF solve this by allowing publisher to control display? It does
take things away from the reader. Goes to some of the underlying Qs about who
gets to decide how they consume the content. It’s ePub format that allows users
to customize, so maybe there are some works that shouldn’t ever be in ePub.

Rosenblatt: selection coordination and arrangement is already
©able—maybe no change is needed.

A: has no examples of assertion. But typography can be
entire content of expression—imagine a script that is just five versions of the
Gettysburg address with different emphases each time. [I wonder whether that’s
actually about the typography; I would consider the typography the fixation of
the decisions about which words to emphasize. But maybe my definition of
typography is too constrained!]

Annemarie Bridy, Google & Yale Information Society
Project

Testing the Server Test: Embedded Images and the Changing
Scope of Online Public Display

Troubling developments in case law. Server test was adopted
in 9th Circuit in 2007. The analytic challenge: what the user sees
and what’s going on under the hood are very different things. Internal v.
external perspective: how should the law see it? Server test is internal perspective.

The Leader’s Institute v. Jackson, Texas 2017: departing employee,
messy case; © counterclaim alleging that TLI “framed” Jackson’s company’s whole
website, making it appear that content at Jackson’s site originated with and
belonged to TLI. TLI sought sj in reliance on server test. Court disagreed: on
the facts, Google just provided links, and the user was “essentially navigating
to an infringing website”; court was troubled by the framing being
intentionally misleading, as opposed to being clear that the content didn’t
belong to Google. This is weird b/c the conduct under the hood was the same. On
the law, the court thought that causing someone else’s content to be visible “on”
a website could be public display even when the transmission originates from
somehwere else.

Higher profile: SDNY, Goldman v. Breitbart, involving an
embedded tweet containing a photo copied w/o permission from Snapchat.
Subsequent SDNY cases involve Instagram embeds: Sinlair v. Ziff Davis (now
settled), McGucken v. Newsweek, Boesen v. United Sports Pub’ns. Either followed
Goldman or didn’t reject it (e.g. Ds didn’t even rely on server test in
the first two and in Boesen they won on fair use). Instagram has now said that its
terms don’t provide sublicense for embedding.

Free Speech Sys. v. Menzel: InfoWars (run by FSS) ran a post
about Hungry Planet, featuring nine images from p Menzel’s book. Embedded from
a website that was hosting and diplaying them with Menzel’s authorization. FSS
filed a declaratory judgment action seeking a declaration of noninfringement—in
the 9th Circuit, but the court found both factual and legal problems
w/ FSS’s reliance on the server test. Even if the server test applied, wasn’t
clear InfoWars wasn’t actually hosting the images. Legally, there are cases
from other circuits refusing to apply the test outside the context of search,
and FSS cited no 9th Cir. authority applying it beyond search. Not
good! Similar issues in Europe, with neighboring right for publishers now
putting pressure on ability to link to content on 3d party websites.

Wu: so you want to do only secondary liability? How would
you deal with the Jackson situation?

A: that would be non actionable under ©. There might be
other theories, but not ©.

Wu: and these other scenarios? Normally putting a copy
online with permission doesn’t make it freely copiable.

A: But the Ds here aren’t copying! The Q is about in line
linking, not copying. EU says it’s “communication to the public,” and there are
Qs about what constitutes the intended public. So they ask whether it’s a
different or new public. We used to assume that something on the non paywalled
internet was for the public as a whole. But these cases have a different flavor.
Consumptive uses do feel different.

Sean Pager: Another potential distinction: the link embedded
in a way that the photo pops open immediately, no secondary click required. Not
like an email link that you have to click on to load a photo (though different
email providers do this differently).

A: but that’s the same thing as search.

Pager: but the user does the search and then clicks on the
thumbnail to load the inline image. In Goldman, the user doesn’t direct
anything; something just comes into their Twitter feed.

A: That’s the same as in Aereo. [The user chose who to
follow]

Peter Mezei in chat: In VG Bild-Kunst, the AG focused on “automated”
access, no click required, for embedded content and opined that such uses
needed authorization. Awaiting eagerly ECJ judgment.

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