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The Metaphysics of Copyright
IN LATE SPRING 1990, a major American music publisher entered into battle with a popular singing group over a handful of words and a few bars of music. In 1965, Acuff-Rose Music, the largest country music publisher in the world, had acquired rights to the song "Oh, Pretty Woman" from its writers, the celebrated pop star Roy Orbison and William Dees. Orbison's recording of the song was his last and biggest hit. Now, twenty-five years later, and without permission from Acuff-Rose, the controversial rap group 2 Live Crew had recorded its own version of the song on its latest album, sandwiching it between two other tracks, "Me So Horny" and "My Seven Bizzos." On June 18, 1990, Acuff-Rose filed suit in federal district court in Nashville, Tennessee, for infringement of its copyright.
What is copyright? From copyright law's beginnings close to three centuries ago, the term has meant just what it says: the right to make copies of a given work—at first it meant simply written work—and to stop others from making copies without one's permission. The first copyright laws aimed only at exact replications of printed work. The publishers of the eighteenth-century poet James Thomson's The Seasons regularly sued producers of unauthorized, or pirated, editions of the popular poem, since they controlled the copyright, obtained from Thomson. Starting in the mid-nineteenth century, copyright extended its reach. As the law evolved, copyright owners could stop the publication not only of exact knockoffs but also of imitations and adaptations: the translation into German of an English-language novel, a story's dramatization for the stage, an abridgment of a twelve-volume biography of George Washington.
And a rap parody of a poignant, popular lyric? One of copyright law's most bedeviling questions is how much one author can borrow from another before he becomes a copyright infringer. In an essay on "Literary Larceny," the English copyright scholar and barrister Augustine Birrell observed that "a particular leg of mutton is mine is capable of easy proof or disproof, but how much of my book is mine is a nice question." Getting the answer to that question right is important, because it is in the nature of creative work for one author to draw on the works of others. Drawing the line of copyright infringement too short will fail to give the original author his due, but extending it too far will make it hard for other writers to earn theirs.
Did 2 Live Crew cross the line when it borrowed from Orbison and Dees? The trial court found that while the group had copied some lyrics and music from "Oh, Pretty Woman," its rendition was very different. The song "starts out with the same lyrics as the original," but, the court added, "it quickly degenerates into a play on words, substituting predictable lyrics with shocking ones." Where Roy Orbison fantasizes about a beautiful woman he encounters on the street, 2 Live Crew had some very different fantasies in mind: a "big hairy woman," a "baldheaded woman," and a "two-timin'" woman.
The lawyers for 2 Live Crew understood that traditional copyright doctrine would judge their clients not by how much they had added to the Orbison-Dees original but by how much they had taken from it. Indeed, they effectively conceded that 2 Live Crew had infringed the copyright but for a single fact: the group's song was not an imitation but a parody, and parodies should be allowed to borrow more liberally than outright imitations. After all, how could a parodist make his point without conjuring up the original, and how could one conjure up the original without copying some of its content?
On January 14, 1991, the trial court handed down its decision. It agreed with 2 Live Crew's argument that parodies deserve elbow room, not only because the art of parody requires some degree of copying but also because it serves a larger cultural purpose—deflating cultural icons. The veteran folk singer Oscar Brand had testified for 2 Live Crew that African-American music commonly substitutes new words to "make fun of the 'white-bread' originals and the establishment." The court agreed. "2 Live Crew is an antiestablishment rap group and this song derisively demonstrates how bland and banal the Orbison song seems to them."
The dispute between Acuff-Rose and 2 Live Crew was just one of hundreds of copyright cases filed in 1990. Copyright cases run the gamut of popular culture, from songs, novels, and motion pictures to news stories, advertisements, photographs, and architecture. Copyright embraces more than art. Some cases involve instructional materials, scientific and scholarly texts, cookbooks—even computer programs. Some turn on broad principles like those invoked by 2 Live Crew. Other cases call for the interpretation of intricate statutory rules. A great many turn on the answer to two questions: Has the defendant copied? Has he copied too much? All copyright cases have one fact in common: by telling authors how much they may lawfully borrow from earlier works and how much they must create on their own, copyright law indelibly colors the works it encompasses, whether news stories, stock market reports, scholarly articles, motion pictures, magazine pieces, or popular records.
Front-page copyright lawsuits like the Pretty Woman case have a clear effect on authors and their works. But that effect is usually felt far from the courtroom, in the corporate legal departments and private law offices to which executives in publishing companies, record companies, motion picture studios, and advertising agencies regularly turn for advice on how much can be taken from a copyrighted work without crossing the law's "No Trespassing" line. Even insurance companies, which issue "errors and omissions" policies to protect publishers and film studios from the effects of adverse copyright decisions, have a say in what gets published and what does not.
All these decisions, whether made in the courts, legislatures, or private law offices, have a single result: when copyright gives control to one person, it extracts some measure of freedom to imitate from everyone else. What justifies this legally enforced exchange? One justification that artists and writers frequently advance is their privacy, the legally enforced seclusion they need to protect their early drafts, and even their correspondence, from public view. In 1986, the reclusive writer J. D. Salinger sought and obtained a copyright injunction to stop a biographer from publishing quotations from his private letters now housed in research libraries. Authors also look to copyright to preserve the integrity of their works. In 1976, the Monty Python comedy troupe went to court and used its copyrights to stop the ABC television network from broadcasting three of its programs in a version that had been truncated to accommodate commercial advertisements and network censors.
Mostly, though, copyright is about money. It can cost a lot to conceive, execute, produce, and market a creative work. The right to stop the copying of a work implies the power to allow it—at a price—and prospective copyright owners usually rely on the hope of eventual copyright revenues to repay their initial investment. A songwriter assigns the copyright in a song to a music publisher, for example, in return for the promise of royalties paid on each copy sold or performed. The publisher sells a film company the right to use the song in a movie sound track, again in return for a share of the anticipated profits. Only the marketplace will determine whether a work has commercial value. But if the work has commercial value, copyright's aim is to put that value in the copyright owner's pocket.
Copyright concerns copies, not originals, and the money involved is usually a small price charged for each of the many copies made for people who want to share in a work, rather than a large price that an individual will pay to have for his own a work that is one-of-a-kind. When an object's value lies in its singularity and authenticity—a painting, for example, or an original manuscript in the author's hand—copyright has little effect on its value in the marketplace. But a novel can command a half-million dollar advance against earnings for its author because his royalties from the sales to hundreds of thousands of readers may at least equal that amount. The reason a painting by Jasper Johns will sell for millions is not that there is a market for copies but, on the contrary, that there is only one original. Even so, copyright can serve an artist's interest by enabling him to stop the selling or making of copies—posters, calendars—that might impair his work's singularity. Also, an amendment to the U.S. Copyright Act gives creators of fine art—works it defines to exist only in an original or in a limited edition—the right to prevent the distortion or mutilation of their works.
Copyright owners today wield their economic control with the deftness of a surgeon's scalpel. A publisher charges more for the initial hardcover edition of a novel than for the softcover edition that follows months or years later, not so much because the hardcover costs more to produce—though it does—as because the publisher knows that some readers will pay a premium to read a new book as soon as it is published, while other readers will trade immediate gratification for the lower price of a cheaper edition issued later. By adjusting its prices to these differing tastes, the publisher can earn a profit from each for both itself and the author. Motion picture companies first release their films to movie theaters, where the admission price is highest; six months later they sell videocassettes or DVDs to video stores where viewers can rent the film for less; then comes home television pay-per-view, followed a year later by pay television; as much as three years later the film may appear "free" on network television. Without copyright, none of these commercial transactions would be possible.
Lawyers commonly classify copyright as an intellectual property law. And, indeed, copyright is related to other, more mundane forms of property. An author's right to ward off unauthorized copying of his work is much like a homeowner's right to keep trespassers off his land. But the "intellectual" part describes a distinctive attribute: copyright is not about protecting rights in a tangible object such as a piece of land or a leg of mutton. Copyright protects products of the human mind, the thoughts and expressions that one day may be found on the pages of a book and the next in a song or motion picture. It is hard to draw boundaries around such fugitive "properties." Justice Joseph Story observed this peculiarity more than a century and a half ago: "Copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent."
A first step in understanding copyright law is to separate it from other intellectual property doctrines. In 1970, Alan Latman, a lawyer whose career soon became entwined with one of the pivotal chapters in the history of American copyright law, told a group of intellectual property specialists that "most people do not understand the differences between patents, trademarks, and copyrights. This applies to clients, other lawyers, and at times even judges. When I tell a general practitioner that I am a copyright lawyer, he immediately corrects me: 'You mean patents!' He then says: 'Well, anyway, as a patent lawyer, you can copyright a name for me, can't you?'" (The inside joke was that trademark law, not copyright law, protects names.)
Patent law's domain is invention and technology, the work that goes into creating new products, whether tractors, pharmaceuticals, or electric can openers. The United States Patent Act gives an inventor, or the company to which he has assigned his rights, the right to stop others from manufacturing, selling, or using an invention without the patent holder's permission. It originates in the same constitutional source as the Copyright Act—the clause in the U.S. Constitution empowering Congress to promote invention and authorship by granting inventors and authors "exclusive rights" in their "discoveries" and "writings." One reason it is so easy to confuse patents with copyrights is that Congress has read the term "writings" broadly, passing copyright laws that protect not only poems, novels, and plays but also such utilitarian objects as telephone directories, bookkeeping forms, and computer programs.
If copyright is the law of authorship and patent is the law of invention, trademark is the law of consumer marketing. Courts protect the terms Coca-Cola, McDonald's, and Kodak against imitation or unauthorized use, not because they represent creative or inventive leaps of the mind, but because they signify a single source of a product and a certain consistent level of quality to consumers. Trademark law aims to ensure that, whether in Portland, Maine, or San Diego, California, a traveler coming upon a fastfood restaurant with the familiar golden arches will get the same food offered in all other Mc-Donald's restaurants. Just as copyright overlaps patents, it also overlaps trademarks. When the Walt Disney Company gets a court order stopping the publication of unauthorized cartoons featuring Mickey Mouse, it is not only because Mickey Mouse is a trademark, indicating Disney as its source, but also because Disney owns the copyright in the Mickey Mouse image.
Congress and the federal courts are not the only guarantors of intellectual property protection in the United States. It is state, not federal, law that protects trade secrets, the closeted technologies and formulas such as the legendary secret formula for Coca-Cola syrup, against theft by industrial spies and disaffected employees. Unfair competition laws enforced by state courts parallel federal trademark law, but without its formalities. If the Coca-Cola Company had failed to register its Coca-Cola mark in the Patent and Trademark Office in Washington, it could still fall back on state unfair competition law to protect it against anyone who passes off his soft drinks as Coca-Cola or sells them under a counterfeit Coca-Cola label.
None of these state or federal intellectual property categories is entirely rigid. Sustaining all of them, including copyright, is the intuition that people should be able to hold on to the value of what they create, to reap where they have sown. When an intellectual property doctrine's traditional four corners will not readily accommodate this intuition, courts have pushed the doctrine's edges to give creators what they perceive to be their due. No one offered a T-shirt emblazoned with the famous Coca-Cola logo would think he was buying a soft drink. But the value—courts call it "good will"— that has accumulated around the Coca-Cola Company's mark over the years produces a predictable result: courts will prohibit the sale of the T-shirt as well as of any other marked product made without the company's consent.
Sometimes courts cannot stretch an existing intellectual property doctrine to protect new sources of commercial value. When in the 1960s famous athletes began lending their names to endorse sports equipment and rock stars began putting their faces on posters, these new pop celebrities wanted to be sure the right to use pictures of themselves wastheir right. Courts tried to fit this new claim—that unauthorized use of their images infringed their right—into traditional unfair competition and trademark law; but when these doctrines proved inadequate, they ultimately developed a new doctrine, the right of publicity, to embody the new idea about the commercial value of one's very own self. When a producer of portable toilets took the famous introductory line from theTonight Show when Johnny Carson was its host, and proclaimed a new slogan for his product—"Here's Johnny" (the "World's Foremost Commodian")—a federal appeals court ruled that sales of the product violated Carson's right of publicity.
Plagiarism, which many people commonly think has to do with copyright, is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts. Plagiarism occurs when someone—a hurried student, a neglectful professor, an unscrupulous writer—falsely claims someone else's words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.
At the heart of all these doctrines, and certainly at the heart of copyright, is an intricate web of public and private interests. It is not always easy to determine which is which. A journalist comes upon a newsworthy event. Can he stop others from reporting the facts that he observes, or does the very newsworthiness of the event mean the public should have free access to it? Should the legal answer turn on whether the news is passed from a bystander to his friends, or is relayed, at a cost, to subscribers of a competing newspaper? Anyone who publicly distributes unauthorized videocassette copies of a motion picture is surely an infringer of copyright. But what of a VCR owner who copies the movie off his television set in the privacy of his home?
Excerpted from Copyright's Highway by Paul Goldstein. Copyright © 2003 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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Posted June 9, 2013