Abrams, H. "Originality and Creativity in Copyright Law" Law and Contemporary Problems © 1992 Duke University School of Law

 

            Abrams observe the change in the ways courts interpreted and used “originality” as a qualifying standard to test copyrightability of artworks, since Copyright Act of 1976 and the added clause of “original works of authorship.” Centering on the landmark decision of Feist v. Rural, he studies the development of originality standard before Feist, the implications of Feist opinion in defining “originality” once again, then looks at cases emerged after Feist to study the implications and applications of the decision.

In order for the standard to be applied, “originality” needs to be defined first. Abrams uses Justice Holmes’ opinion in Bleinstein v. Donaldson, to define originality as a “contribution of the author” rather than the “purpose” with which the work was created. Following the decision, standard of originality became about the “sweat of the brow,” about artist’s effort put in, with disregard to artistic or aesthetic merit.

Abrams marks Feist as the landmark decision that shifts meaning of originality from being about physical contribution to having “intellectual production, of thought, and conception.” The most important declaration of the decision is when court constitutionally mandates component of creativity as part of the requirement, which now is embedded in the Constitution. However, at the same time, Abrams recognize the challenge is to define what satisfies the minimum creativity required for copyright protection. He responds that minimum creativity is anything more than “placing an obvious grouping of data in a common and obvious format,” and more refined standards to be established by the future court.

Abrahams introduces series of cases after Feist decision, most notably Kregos v. Assoicated Press and BellSouth Advertising v. Donnelly Information Publishing, to illustrate that originality is no longer found in efforts measured by “time, expense, nor even in the vulnerability of competition,” but only in the final work that it is a work of some independent, original intent.

Abrams concludes on a positive note. The decision has, once and for, declared the importance in the expression of idea, more than the “sweat of the brow” in copyright law. He believes that Feist has made sure the abusive copyright claims on recompilations of facts and data, made so easily in light of emerging technology of today, by declaring a “meaningful minimum” in constitutional standard of original input.

While the paper does not directly argue about court’s aesthetic decisions on defining and shaping the meaning of originality, Abrams illustrates through Feist and one specific limit it has set on what is NOT copyrightable has helped provide precedence and clear standard for judges to follow. This goes on to support that, even with just one example that illustrate the line of bare minimum originality, the evaluation has become more consistent. Therefore, a definitive structure for evaluation of copyrightability will provide consistent jurisdiction that both the courts and public can follow.

 

BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)

 

The case rises about when the Library sues Corel Corp, a company which makes photographic copies of famous artworks from museums, works which are already in public domain, sued Corel Corps for using digital images of these arts in their CD-Rom without compensation and sued the corporation for copyright infringement. The court was now faced with reinterpreting the loosely written “originality requirement” set during Burrow-Giles Lithographic Co v. Sarony in l884 and reshape the copyright clause of the constitution. Bridgeman points out in its argument the special techniques and extra effort and time which has put into reproducing the artworks as precisely and accurately as it can, but it further points to the fact while the copying of the artworks require a great deal of admirable skills, they are not of original merit and does not have artistic values that give them the right to copyright protection. Judge Kaplan puts it, “sweat of the brow” vs. “creative spark.” While the techniques and skills are valuable assets, they are not characteristics of creative of which, the case defines as “elements of originality… may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression…” These “elements” described in the case are not to be developed through training and effort, the way techniques require to make a perfect copy of a painting would, but requires a natural talent to capture creative moment on the two dimensional space. Because the works under question adamantly lack “distinguishable variation” and original input from the actual work that is being reproduced, no copyright protection can be granted.

Ultimately, Bridgeman v. Corel Corp ruled that two dimensional photographic reproductions of art already in the public domain were not copyrightable because the reproduction process of the art involved zero originality, which does not merit them the copyright production enjoyed by original works of photography.

This case provides a great support to the case because the case directly recognizes the lack of structure of the Sarony case and faces the difficulty of its broad definition by placing more aesthetic requirements for copyright protection. The case pinpoints to the public that originality that come from art is a matter of talent, not in the skills and efforts put into it. But the word talent is a very subjective and elusive term, as its meaning changes with societal perception and preferences. To base a legal clause on an intangible term fails to create a concrete standard for the society. Also, words used such as “distinguishable variation” and “creative spark” to describe works of original art create clear boundaries that we come to expect from the law. Observing from previous cases, it is apparent that no clear precedent was formed from one case to another, but the court created new aesthetic definitions of “original work of art” through case-by-case studies. Aesthetic decisions have created inconsistency and lack of predictability in copyright law.

 

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)

 

The Supreme Court case, Feist Publications, Inc, v. Rural Telephone Service shows two arguments on issues of copyrighting facts. The case emerged when Feist Publication included numbers from Rural Telephone Service to be included in their own telephone book when Rural refused to share the information, and Rural sued for copyright infringement. The two main arguments are presented: one states that fact alone cannot be copyrighted, but compilations of facts can be considered an artistic input; therefore, the expression of fact in a "collection of words" can be copyrighted. However, the compilation of facts require a minimum degree of originality, and since copyright law only applies to creative aspects of the two dimensional work, a list of A-Z phonebook does not satisfy enough creativity or artistic merit to be qualified for copyright protection.

The Court ruled that Rural's listings did not meet the standards for “minimum creativity” and that the use of the listings did not constitute infringement. This decision emphasizes that copyright only extends protection to originality, not the amount of effort put into the creation of an artwork.

This recent case showcases a judicial activism in which the court uses aesthetic qualities to judge whether this particular compilation of facts, via phonebook, is under copyright protection. However, this decision complicates my argument greatly. Under Bleistein v. Donaldson, any artwork of a value should be granted copyright. Looking at the monetary value that the phonebook contains, the copyright should be granted, however its evidently low artistic value disqualifies the work of any copyright infringement. What is the minimum balance of artistic/tangible value that would grant a two dimensional artwork a copyright protection? Also, the case brings up demonstration of minimal originality as part of the qualification. The court only so far answers the question by saying that listing of facts is not providing enough creativity. Where does the line lie for minimal creativity? Aesthetic determination of the work seemed crucial in this case, for if the copyright was granted, the value of art in current society will diminish because creation of artwork has become so effortless and widespread, but perhaps it was because no clear quantitative standard to judging “minimum originality” was set by the legislature or the judiciary. The case weighs in on the necessity of aesthetic decision to promote progress, but also demonstrates that while aesthetic decision is good for case-by-case studies, it shows that lack of quantitative standards created inconsistency in what society has perceived as norms and requirements for a copyright protection over time.

 

 

Book pages 223 through 228.

 

Copyrights for Laurel and Hardy films are owned by Hal Roach Studios for which Michael Agee is the chairman.  Despite directly benefiting from the Copyright Term Extension Act (CTEA), Agee opposes the legislation.  Even though Roach sells thousands of DVDs and video cassettes of these films, few of what they own still has any commercial value.  The works sit in a vault, and even though what doesn't presently have value could be deemed valuable by the owners of the vault, the commercial benefits from the works must surpass the costs of making the work available for distribution in order for this to happen.

We cannot know the benefits described above, but we can know the costs.  Today, film restoration, which used to cost thousands of dollars, can be done for hundreds.  This leaves most costs to the hiring of lawyers, who are presently necessary in order to find and secure rights from the many copyright owners of a film.  Thus the process of restoration for the preservation of film is time consuming and costly, and unfortunately it can be argued that the benefits do not outweigh the costs.  Therefore we wait until the copyrights expire to restore them, but because these old films were produced on nitrate-based stock, by the time the term expires, the stock will have dissolved and there will be nothing left to restore.

This death of old film and creative works is the death of future works.  Even is someone chooses to wait until the end of a copyright term to create a derivative work, the original work from which the person wishes to derive will no longer physically exist, making the creation of the derivative work quite difficult.  Today we have digital copies of work with a much longer lifespan; however, if big media companies continue to push for term extensions such as the CTEA, works may never pass into the public domain and new works with potentially high commercial value as well as creativity will never be produced.

Final project bibliography for CINE 110-401: Copyright and Culture. Copyright law creates so many restrictions that, without millions of dollars, make it impossible for independent filmmakers to implement their full creative potential into their projects. This is causing the quality and quantity of independent films to decrease as a result of the filmmakers' frustrations. Major Hollywood production companies are increasingly becoming monopolistic due to the fact that they are the few that can afford to pay off copyrights. Even when some hope in the form of a platform for distribution presents itself--the internet--, big media manages to push into effect law that prevents its use.

Sometimes the issue is a little bit more complicated (although this is in no way simple) than obtaining permission from a copyright owner to use his or her work.  Sometimes, the copyright owner cannot be located, and a whole new slew of questions arise.  Does one use the work and take the risk of violating the law and possibly being sued, or does one refrain from using the best suited work and compensate with another less fitting work legally?  These questions and the reasons for why they are too often being asked are the topic of this essay.

Recent changes in copyright law, three in particular, are the main culprit.  They are automatic copyright protection, copyright renewals, and increased duration of copyright.  Under previous U.S. copyright law, authors had to register their material in order to receive copyright protection.  Today, anything that is created automatically is protected, and therefore many people don't bother registering their works, making it extremely difficult to track down the owner.  In addition, copyright today doesn't need to be renewed because the duration of current copyrights is already significantly and outrageously long.  This may make things easier for copyright owners who do not need to file paperwork, yet it makes things much more difficult for those trying to locate an owner because less paperwork is available to be searched through.

These issues prove to be daunting and intimidating to a person wanting to utilize something from a copyrighted work in their own creation.  An independent or documentary filmmaker, for example, might have to restrain from using something that he or she feels best enhances the work because of an inability to locate the copyright owner of the work wanting to be borrowed.  This is an obvious damper on creativity and significantly lowers the quality of future works.  If gaining permission to use a copyrighted work is hard enough, imagine gaining permission from a person that doesn't even exist.

This landmark case deals with the concepts of digital sampling and fair use.  Video Pipeline, a video promotion company, created trailers of home videos to be shown in stores.  These videos, intended to benefit the store's sales, were shown in the store and consisted of film clips acquired from the film distributors.  Video Pipeline continued this practice until 1997 when it considered the internet as a bigger, better, and more efficient way of distributing these previews.  It viewed its idea as a sort of sampling; much like a person can often sample a few pages of a book in a bookstore before buying it, they wanted to make short clips of movies available for preview before purchase.

After a few years of this distribution, Disney told Video Pipeline to stop.  However, Video Pipeline thought it was within their rights of fair use to distribute these clips and thus filed a lawsuit asking the court to declare that these rights were in fact theirs.  Disney countersued for $100 million in damages.  The court ruled in favor of the defendant, Disney, and claimed that because the trailers were compiled of exact clips, they were derivative works illegal under the law.  In addition, the Plaintiff was ruled as violating performance and public display laws.  Last but definitely not least, the court ruled that the trailers did not fall under the argument of fair use for lack of adherence to the factors of fair use, which are as follows: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value for the copyrighted work.

This once again justifies the fear of filmmakers to borrow from copyrighted material, despite possible claims of fair use, because as is exemplified here, even a small borrowing of a film clip can cost millions.

Once a work has entered the public domain, the original owner no longer has rights over it.  This clause of copyright law has proven challenging as past copyright holders have attempted to reclaim their rights when it becomes suddenly convenient.  This is the subject of the U.S. Supreme Court case Dastar Corp. v. Twentieth Century Fox Film Corp.

In 1948, Fox obtained rights to create a television series called Crusade in Europe based on a book written by Eisenhower and published by Doubleday.  Doubleday renewed the copyright to the book in 1975; however, Fox chose not to renew their copyright on the series, which thus entered public domain in 1977.  Dastar then took the series in 1995, edited and manipulated them, and repackaged them.  They sold the new videos and credited Dastar employees as producers and not the original book or TV series.

Fox sued in 1998, attesting that Dastar had infringed on copyright and had "passed off" the work as their own.  The district court found for Fox and awarded it double Dalstar's profits.  Finally, the U.S. Supreme Court reversed the decision of the district court and another appeals court.  In an 8-0 ruling, the court reasoned that once a work passes into the public domain, anyone in the public may do anything he or she wishes with it and does not have to attribute the author.

This court ruling helps promote creativity somewhat by assuring artists that anything in the public domain is fair game for their use in future works.  However, there is still the fear that someone might try to claim rights, and often the potential battle isn't worth it.  In addition, copyrights today, thanks to extensions, are so long that producers and publishers don't need to renew copyrights because they last well over the death of the author.  Once again, the copyright monster scares small companies from creating for fear of infringement.

In the world of copyright law, there is currently a major debate over whether or not the already granted extensions of copyrights are beneficial or detrimental to the creative process, and whether or not these extensions should continue to be made.  Up to this point, lawyers have successfully defended copyright extensions as being "good for the arts" by preventing "dilutions" of artists' works.  However, as Lawrence Lessig comments in the article, "[The media companies] have used their power to protect themselves against innovation, which is exactly what the copyright was originally set up to guard against."

If it weren't for the ability to borrow and manipulate, half of Disney's iconic figures that we as a society hold so close to our hearts, such as Mickey Mouse and Snow White, would never have existed.  And the direction in which copyright is presently going could prevent the creation of future icons.  As Lessig makes point of, artists should be compensated for their works, but such ridiculously long extensions of copyright are only hurting society.  If these extensions had existed a hundred years ago, Disney would never have been able to create Steamboat Willie from Buster Keaton's Steamboat Bill Jr., nor would we ever have been able to enjoy Snow White or Cinderella, both clearly borrowed from the stories and tales of the Borthers Grimm.

This article clearly relates to the argument that copyright can and is hurting creativity.  As it was originally intended, copyright was enacted to protect the creative process, not diminish it.  However, its direction today is butchering creativity.  Just because something is borrowed from an older work to create a new one doesn't mean that the creator of the new work doesn't have any original ideas of his own incorporated into the work.  Thus, Lessig and colleague Eric Eldred are fighting to take back the public domain and reconvert it into a lawyer-free zone.  In Lessig's words, he's trying to "Free Mickey."

Book pages 184 through 199.

 

In these two sections, Lessig argues that copyright laws constrain people from creating and innovating.  By mentioning and discussing the conceptions of all different types of artists, including painters, film makers, and musical artists, Lessig shows how the laws originally meant to protect these authors are now hurting them by constricting their abilities.  As Lessig states towards the end of this section of his book, "If innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant innovation and much less creativity."

The argument of fair use of course comes up in these sections, but Lessig puts it this time in a different and interesting way, claiming that "fair use in America simply means the right to hire a lawyer to defend your right to create."  It's all about money and the market, and those who don't have the former can't hope to have their works distributed in the latter.  One simple infringement such as illegally downloading a song could cost a person millions of dollars in this country; however, a doctor, thanks to malpractice insurance, cannot be liable for more than $250,000, regardless of the damage to his patient.

Lessig also makes particular note of the internet and how it has increased the quantity of work out there and the speed and efficiency with which it can be shared.  Unfortunately, this should-be miracle is not utilized to its full potential because those creators and innovators that cannot afford to clear copyrights are too scared to make their work available on the internet for fear that it might be seen by someone who could sue them.  

This money driven, lawyer infested problem is stunting our culture and preventing our growth and expansion because no one wants to risk their life to put something creative and new out there.  And when the possible repercussions of taking such a risk include losing millions of dollars and consequently a livelihood, creativity and innovation suddenly begin to dwindle.

This source solidly supports my argument that copyright law is killing creativity rather than doing what it's meant to and protecting it.  It directly relates to my thesis and contributes to my claim.

Book pages 95 through 107.

 

In consecutive chapters of Lessig's book, the making of two documentaries is described. In both of these instances, the filmmakers had problems clearing copyrights and struggled with the concept of fair use. These examples clearly demonstrate the difficulties encountered by independent filmmakers with regards to production and distribution of copyrighted material, as well as amplify the restrain that excessive copyright puts on the creativity of the filmmaker. The chapters tie in the role of independent films in the "copyright kills creativity" argument.

Chapter seven illustrates the plights of Jon Else who, when working on a documentary about the stagehands at the San Francisco Opera, encountered a copyright issue. In the background of a shot of the stagehands was a television on which was playing an episode of The Simpsons. Despite the fact that the clip was merely four-and-a-half seconds and clearly fair use, Else still thought it smart to clear the copyrights. He contacted Matt Groening, who referred him to Gracie Films, who referred him to Fox, who demanded ten thousand dollars for the licensing fee. This sum of money was not something Else could afford, and he therefore ended up digitally replacing the clip which he felt was valuable to the effect of the scene.

In the proceeding chapter, the story of Alex Alben, a lawyer for Starwave, Inc. is told. Alben wanted to create a project using the new technology of CD-ROM to showcase the career of Clint Eastwood through interviews, posters, script, and film clips. The problem arose when it came to clearing the rights of each and every person involved in the making of each individual film clip, including actors, directors, and composers. Alben needed to compensate each person, which took an entire year given his vast fiscal resources. The amount of time it would have taken the average person is unimaginable, that is if they could even do it.

As these two examples show, the monetary means as well as the time necessary to create such products are inaccessible to the average person, thus killing the output of creative material.

In this article, David G. Post comments on Lawrence Lessig's Free Culture and his statements concerning copyright and creativity.  As is pointed out, copyright's original intention was to safeguard creativity by assuring creators that their works would be protected from replication.  It made a creator the owner of his or her creation and gave him or her complete control over what would be done with the work.  The assurance that this copyright provides in a way gives authors an incentive to create.

With regards to the other argument concerning creativity and copyright, the one in which it is claimed that copyright limits creativity, Lessig states that copyright law has, until now, for the most part "steer[ed] a middle course" and remained balanced by protecting the rights of today's creators and simultaneously limiting these rights so that the next generation is free to borrow what they want from the previous.  However, Post tells of what is currently happening and states that copyright has "swollen to gargantuan proportions" and no longer resembles, not even closely, what it originally was.

Lessig's contention for why copyright is killing creativity is that power is now concentrated in the few hands of the big media companies.  Post does not agree with this for lack of evidence and denies Lessig's substantiation of a few anecdotes.  However, with reference to film, this claim is not far from true.  Film production companies are now few in number, and even those that we believe are small indie companies are in fact owned by Fox 20^th Century, Miramax, Paramount, or MGM.  Even those movies that we believe are far from being under the influence of big media are in reality being dictated by the same big names and the same big money that your average major Hollywood production is.

In the end, whether Post agrees with this claim of Lessig's or not, he praises the author's attempts and goes as far as to say that one beginning to study copyright could "do much worse than to start with Lessig's book."