COPYRIGHT AND REALITY.

• Author: Smith, Sarah

INTRODUCTION 1270 I. CONCEPTUAL APPROACH 1275 A. Commonsense Ontology 1275 B. Categorization 1277 C. Conceptual Metaphor Theory 1279 II. REALITY METAPHORS 1281 A. Reality-is-Original; Representation-is-Copy 1281 1. Reality-is-Commons 1284 2. Complicating the Copy. 1288 3. Reality-is-Subject-Matter; Originality-is-Variation 1292 a. Photography 1293 b. 3-D Modeling and Scanning 1299 B. Reality-is-Facts; Facts-are-Discoveries 1308 III. THE CONCEPTUAL MODEL 1316 A. A State of Nature 1318 B. The Modern World 1318 C. Hyperreality 1320 IV. IMPLICATIONS FOR NEW REALITY TECHNOLOGIES 1320 Conclusion 1325 INTRODUCTION

"Reality has left the physical world and moved into the virtual one." (1)

Reality is a daunting concept. Most people have an intuitive understanding of the stuff of reality, but this gut feeling comfortably remains at the level of the subconscious. We know it's "out there," but it is a neglectful acknowledgement:

Few of us think about 'reality' much .... It is, perhaps, the conceptual equivalent of unconscious motor functions such as breathing. It is vital to life--without it, we would be unable to distinguish the real from the imaginary, the true from the false, the natural from the artificial. But we do not have to think about it to use it--indeed, as soon as we do start thinking about it, it becomes extremely difficult to continue using it. For this reason, perhaps, some may regard it as a peculiar subject for any sort of analysis: it is a given, a fact of life, and best left hidden behind the curtain of unconsciousness. (2) This intuitive human feeling for reality (and the accompanying reluctance to open the can of worms that comes with examining it more than subconsciously) persists throughout copyright law. Indeed, it is rare to find a judicial opinion that explicitly refers to the concept of reality; instead, that thing we intuitively understand to be reality looms anonymously just below the surface of legal reasoning. For example, courts refer obliquely to "actual groups,--visible things," (3) "subject matter," (4) and "facts in the world." (5) The meaning of reality is considered, perhaps, too intuitive or too overwhelming for direct analysis.

The concept of reality, however, has a great deal of influence in copyright law. Copyright law has carved out reality as that thing which is not protected, particularly as technologies have emerged which use reality heavily as a medium of expression. (6) This seems reasonable--reality as we commonly understand it is not authored, (7) and thus not fixed and not original. (8) However, because copyright law has grappled with the concept of reality obliquely and anonymously, we are left uncertain about precisely what role the concept holds in copyright law. Can reality ever be authored? Is all of reality part of the commons, or just certain segments of reality? How can using reality as a referent impact the availability of copyright protection for creators? The answers to these questions are not immediately apparent.

It is at this point that the proposition that reality is best left unexamined loses its footing. Our intuitive sense of reality may no longer suffice as a tool of legal analysis because we are on the verge of a "new reality," as artificial reality technologies make the artificial an ever more real part of our daily lives. (9) Mark Bolas, an expert on augmented and virtual reality technologies, foresees a future in which the virtual and real intermingle completely. (10) And as early as 1991, the main theme of Britain's first virtual reality conference was how technology "could manipulate reality to the point of being able to create it." (11) Confronting such new technologies, which are termed variously and nonexhaustively as virtual reality, augmented reality, mixed reality, hybrid reality, and cognitive reality, (12) courts may reasonably analogize to or distinguish from reality itself. (13) Or perhaps, do the same with other technologies that purport to use reality as a medium of expression. (14) The path that courts will take is not clear, and undoubtedly the particular modifiers used to describe the technology (mixed, augmented, hybrid, etc.) will lead courts in different directions. However, a clear understanding of what copyright law currently understands "reality" to be is a good place to start.

The goal of this Comment is to bring the place of reality in copyright law out of the shadows. Because we are in the early stages of new reality technologies, this Comment's approach is descriptive and evaluative rather than normative. It aims to reveal how reality has been understood in copyright law, organize these understandings into a coherent conceptual model, (15) and then briefly critique that conceptual model in terms of its potential implications for new reality technologies. It does not seek to propose how reality should be defined, or how new reality technologies should be treated, as a proper analysis of these issues will depend heavily on the precise nature of the technologies. Currently, these technologies are simply too nascent and varied for discrete analysis.

Because the concept of reality is so heavily obscured within copyright case law, this Comment uses conceptual metaphors as its key archeological tool to expose reality's content and analytical significance. A metaphor is a cognitive tool that transfers something from a familiar source domain to an unfamiliar target domain. (16) In copyright case law, reality appears implicitly as the target domain, while courts use language from more familiar source domains (for example, subject matter or facts) to discuss it. For instance, the keystone reality-is-the-original conceptual metaphor reveals that reality is relevant to copyright law in its role as a referent. (17)

Indeed, the nature of the referent has vital analytical significance in copyright law because it is key to deciding both originality and infringement. (18) The originality standard is a constitutional requirement for copyright protection.1 (9) A work may only be protected if some element of the work is original; protection, however, only extends to those original elements. (20) Prior to the Supreme Court's 1991 decision in Feist Publications, Inc. v. Rural Telephone Services Co., courts required only that a work have an author and not be copied. (21) In Feist, the Supreme Court heightened the originality standard by also requiring that a work be minimally creative. (22) Post-Feist, the originality standard has two prongs: (1) the work must be the independent creation of an author, as opposed to being copied from another work; and (2) the work must possess some minimal degree of creativity. (23) On the other hand, infringement requires actual copying of another author's work. Thus, we must be keenly aware of whether an author's referent contains other works.

Because the nature of the referent is central to determining both originality and infringement, it is critical that we understand what constitutes reality and how courts treat the special case where reality is the referent. (24) The fundamental message of this Comment is that reality-as-referent is treated differently depending on its content. Segments of reality that have no human creator are truly available referents for subsequent creativity, while segments of reality with some other human author are more qualified referents due to concerns about potential infringement. On the other hand, where reality-as-referent is created or composed by the author, the ensuing work is considered to be far more creative than a work that uses unmediated, pre-existing reality as a referent.

Authorship and perspective are also critically important to understanding the role of reality in copyright law. In this Comment's ontology, reality encompasses everything not created by the particular author at hand (whom this Comment terms the "next creator"). In other words, reality includes everything that does not "owe[] its origin" (25) to the next creator: things that have no human author and things that have a different human author. Understanding reality from the perspective of the next creator (26) is essential to reconciling the common view of reality as including both created and non-created things with the Supreme Court's characterization of facts and discoveries--both commonly equated with reality through the reality-is-facts and facts-are-discoveries conceptual metaphors--as non-created. Simply put, reality is not viewpoint neutral.

Reality is also infused with a normative underbelly, as reality is understood to be an essential part of the commons. The commons--defined at a high level of generality--is a reservoir of resources generally accessible by the public for use without restriction. Because creativity is essentially derivative, the commons is a freely accessible, referential source for future creators. We must appreciate the normative underpinnings of reality in order to effectively approach new reality technologies--essentially, simulations--that threaten to make a work indistinguishable from its referent. By blurring the lines between reality and representation, these technologies will challenge how we define the difference between reality and the works copyright law seeks to protect. In doing so, these technologies may encroach upon reality's normative home in the commons.

This Comment begins in Part I by outlining a conceptual toolbox for approaching the controversial concept of reality: commonsense ontology, categorization, and conceptual metaphor theory. Part II explores the two predominant reality metaphors in copyright law: reality-is-the-original and reality-is-facts. It also explores several ancillary metaphors: reality-is-commons, reality-is-subject-matter, originality-is-variation, and facts-are-discoveries. Using these conceptual metaphors, Part II pieces together an ontology of reality from the perspective of the next creator. Part III pulls...