Copyright: the Fine Art of Protecting the Fine Arts
| Publication year | 1984 |
| Pages | 1383 |
1984, August, Pg. 1383. Copyright: The Fine Art of Protecting the Fine Arts
This article deals with copyright law as applied to the activities of individuals involved in the arts. Writing, painting, picture taking and performing are activities engaged in by nearly everyone either as hobbies or as careers. Such activities bring many people into contact with the "intellectual property" field. This article first discusses what a copyright "right" is and what constitutes a cause of action for infringement. It then discusses the limitations of copyright (what copyright is not), the statutory requirements for obtaining copyright protection and, finally, the concept of "fair use."
Section 102 of the Copyright Act of 1976 ("1976 Act")(fn1) states: "Copyright protection subsists ... in original works of authorship...." An "original work" can be an exact duplicate of an already existing, copyrighted work. Copying, not duplication, constitutes infringement and is forbidden by copyright laws. Independently creating an "identical twin" of an existing work is not infringement. As Learned Hand explained, "if by some magic a man who had never known it were to compose anew Keats' Ode on a Grecian Urn, he would be an 'author,' and, if he copyrighted it, others might not copy [that man's] poem...."(fn2)
To be an original and therefore copyrightable work, a work merely has to "owe its origin" to the author. It can be identical to another work without infringing, so long as it is not copied.(fn3) Thus, a hundred homeowners could independently create and legally copyright a hundred separate but identical architectural plans for their homes.
The right to copyright protection for identical works which have been independently created without copying is the rule---at least in theory. In reality, courts recognize only a handful of works which can be identical while being independently created. Dictionaries, maps, guidebooks, directories, architectural plans and photographs tend to be quite similar, even identical. If independently arrived at, they can be independently copyrighted.(fn4)
The ability to copyright anything created, subject to the restrictions on copying, is virtually unlimited. As enumerated by § 102, anything which can be fixed in a medium that can be perceived can be copyrighted. To traditional creations such as books, musical works, and plays have been added pantomimes, choreographic works and, now, computer programs.(fn5)
There are two aspects of copyright which deserve some mention in the area of original works of authorship: U.S. government works and compilations or derivative works.
Copyright protection, according to § 105, "is not available for any work of the United States Government,..." although the U.S. government can receive and hold copyrights transferred to it. A "work of the United States Government" is, by definition, "a work prepared by an officer or employee of the United States Government as part of that person's official duties."(fn6)
A report of the Secretary of Agriculture or the figures of the Census Bureau would thus be in the public domain, not subject to copyright. On the other hand, works commissioned by the government, but produced or created by a private organization have been held to fall outside the definition of a government work. They can be validly copyrighted and assigned to the government.(fn7)
Federal statutes and judicial opinions fall broadly into the category of government publications and through judicial interpretation have long been held to fall into the public domain. State statutes and judicial opinions similarly fall into the public domain. Because due process requires unlimited access to governmental rulings, and copyright can potentially restrict access, administrative rules or municipal codes cannot be copyrighted. However, § 105 does not forbid states from copyrighting general publications.(fn8) In addition, copyrighted material appearing with or within judicial opinions is still protected by copyright.(fn9) For example, West Publishing Company's headnotes are fully copyrightable as "original works of authorship."
Compilations and derivative works are a special category of original work. Essentially, they are re-creations of all or part of a previous work. A compilation is a collection of separate works which are unchanged in the new form, such as a collection of the poems of several authors, a collection of essays or a collection of short stories. A derivative work is a changed version of a prior work based on the prior work. A
translation of a book, the movie version of a play and a second or abridged version of a textbook are examples of derivative works.(fn10)
Perhaps the most important point to remember in connection with compilations or derivative works is that prior works cannot be used without the permission of the copyright owner. While § 103 specifies that original works include compilations and derivative works, it does not allow someone to appropriate a valid copyright by including a copyrighted poem or essay in a new work. Section 103 creates no rights which otherwise do not exist, and material used "unlawfully," i.e., without permission, is not subject to copyright protection in the new work.
The standard which courts apply to original and derivative works for copyrightability allows a lower threshold of originality for the author's derivative work than for copied versions by others. An "original" work is required to contain "substantial, not merely trivial changes." However, as one court stated, sufficient originality could be found for copyright if the second edition of a textbook made "only minor revisions of or additions to the first edition."(fn11)
Since federal copyright protection now exists from the moment a work is created---when words are written or a photograph is taken---essentially no positive action needs to be taken to secure protection. However, where an "author" shares with or distributes the information embodied by his "writings" to others, the addition of a copyright notice on each separate version, together with registration, is strongly advised. If separate registration is overly burdensome, as with frequent revisions of computer programs, or the "writings" are hundreds of frames of film, the presence of the copyright notice on each version or revision is sufficient to preserve rights. Where an infringer has notice, an action can be maintained for actual damages and injunctive relief, even though registration occurs after the discovery of infringement.
Mickey Mouse and Donald Duck may help to illustrate the parameters in which courts have had to work to decide derivative works cases. Imagine that Disney Enterprises has successfully licensed several Disney characters with ten toy manufacturers. Royalties for one year for each manufacturer are estimated at $100,000 or a total of $1 million a year. An executive learns that one of the licensees, the Tomy Corporation, has rushed plastic wind-up Mickey Mouses, Donald Ducks and Plutos into production, received a certificate of copyright on each as "original creations," and charged one of the other Disney licensees with infringement. Success for Tomy would be likely to cost Disney revenues.
The Tomy Corporation, in copyrighting a plastic copy of a cartoon character, was trying to take advantage of a line of thought developed in early copyright cases that a new copyrightable "original" was created simply by redoing a work in another medium---an oil painting of a marble statue would be an original creation, as would a statue made from a written description.(fn12) Thus, if a plastic Donald Duck were a copyrightable creation of Tomy's, Tomy could appropriate the Disney creation and force other manufacturers to pay royalties to Tomy rather than Disney.
The only solution then open to other manufacturers would be to change their design. Unfortunately if they changed Mickey Mouse to Mighty Mouse or Donald Duck to Daffy Duck to escape Tomy, they would also be outside the scope of the characters licensed by Disney and outside of Disney's royalty clauses, and Disney would lose the rights in its own creations. V
The implications of such a ruling proved too much for the Second Circuit. In Durham Industries, Inc. v. Tomy Corp.,(fn13) it held that a plastic Mickey Mouse was only a derivative work of the cartoon Mickey, and Tomy could not claim copyright in Mickey as an original work. Therefore, minor changes in a work did not make it an original work, capable of copyright protection as an original work.
In a similar vein, the Seventh Circuit in Gracen v. Bradford Exchange held that a painting of Judy Garland, based on and depicting a scene from The Wizard of Oz, was a derivative work, not sufficiently original to be copyrightable, except with the permission of the copyright owner, MGM.(fn14)
These cases emphasize the nature of derivative works. They are substantially derived from an underlying work and, but for the copyright owner's permission, would otherwise constitute infringement.(fn15) The message for painters or sculptors is that if their works show a close enough likeness to a Judy Garland or a Paul Newman, as they have appeared in a copyrighted movie, and are recognizable as such, they are derivative works and permission must be obtained.
The basic cause of action for copyright infringement consists essentially of four elements: (1) ownership of a valid copyright by the plaintiff; (2) copying of the copyrighted work by the defendant, which is proved by; (3) access to the copied work; and...
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