The Theoretical Criticism of the Romantic Notion of Inseparability of Artist and His/Her Work and Its Potential Implications for Copyright Law

This a tangent from what we need in order to complete the project at hand, but some interesting theoretical issues involved in authorship and ownership are briefly addressed in Lionel Bently's review, "Copyright and the Death of the Author in Literature and Law," of The Construction of Authorship: Textual Appropriation in Law and Literature by Martha Woodmansee; Peter Jaszi, Durham, NC: Duke University Press, 1994, and Authorship and Copyright by David Saunders, London: Routledge, 1992, Modern Law Review, 57 (6), Nov. 1994, 973-986

...The claim that the concept of authorship in literature is intimately related to that which operates in law is principally an historical claim that copyright law, romantic authorship and the overpowering significance of the author were ‘born together’. That is, the link established in law between an author and a work, and the romantic conceptualisation of the work as the organic emanation from an individual author, emerged simultaneously at the end of the eighteenth century. The consequence of this, it is claimed (by Rose, for example), is that the literary critique of authorship threatens the intellectual foundations of copyright law. If the legal walls establishing ownership of the text were built on the same intellectual foundations as romantic authorship, and those premises turn out to be sand rather than rock, copyright will sooner or later come tumbling down...

What is an author?

From Peter Jaszi, Case Western Reserve's own Martha Woodmansee, and their collaborators, an excerpt from Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge:

An "author" in the modern sense is the creator of unique literary, or artistic, "works" the originality of which warrants their protection under laws of intellectual property -- Anglo American "copyright" and European "authors' rights." This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary.

This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique -- in a word, "original" -- work which, accordingly, may be said to be the property of its creator and to merit the law's protection as such.

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions -- the recovery of marginalized creators and underappreciated forms of creative production -- has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center -- indeed, the linchpin -- of Anglo-American copyright as well as of European "authors' rights" is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the "transformative" moment in the creative process.

Speaking of collaborative authorship

Our class is engaged in its own collaborative writing project, a wiki-based "Brief Writing Checklist."

And, with reference to a source previously referred to in this blog, our school's own Martha Woodmansee organized a collaborative authorship project in Case Western Reserve's English Department, "Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge":

During the spring semester 2004 I directed a collaborative research project at the intersection of Law and Cultural Studies -- specifically, the domain of international intellectual property covered by copyright. The "collaboratory" consisted of three graduate assistants from English, Law, and Sociology, and nine advanced undergraduates majoring in arts, humanities, and social science departments at Case Western Reserve University. The aim of this project was to give undergraduates an opportunity to participate in basic research in the humanities in a collaborative work environment. Our joint efforts resulted in this website, which takes advantage of digital technology to expand and enhance my article, "Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge," co-authored with Peter Jaszi and published in Scientific Authorship: Credit and Responsibility in Science , ed. Mario Biagioli and Peter Galison (NY: Routledge, 2003). -- Martha Woodmansee, May 15, 2004.

How to profit without risking infringement: appropriate creations unprotected by our intellectual property laws

More from the Manual, the KLF's how-to book on making a number one pop hit. Here they note that the first component part of the song is its "groove," and that "Black American records" are always a reliable source for effective ones. Oh, and they point out that the grooves on those records aren't even considered part of the copyrighted music:

The first of the component parts you are going to need to find is the irresistible dance floor groove.

Before we go any further we had better define "groove". It is basically the drum and bass patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .

Black American records have always been the most reliable source of dance groove. These records down through the years have inevitably laid so much emphasis on the altar of groove and so very little into fulfilling the other Golden Rules that they very rarely break through into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not only by the business but by all the artists that have followed on from them. This is because the copyright laws that have grown over the past one hundred years have all been developed by whites of European descent and these laws state that fifty per cent of the copyright of any song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove doesn't even get a look in. If the copyright laws had been in the hands of blacks of African descent, at least eighty per cent would have gone to the creators of the groove, the remainder split between the lyrics and the melody. If perchance you are reading this and you are both black and a lawyer, make a name for yourself. Right the wrongs.

The KLF aren't the only ones who have detected racial and cultural bias in Western intellectual property laws. As the Authorship Collective in the English Department right here at Case Western Reserve explains (footnotes omitted):

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions -- the recovery of marginalized creators and underappreciated forms of creative production -- has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center -- indeed, the linchpin -- of Anglo-American copyright as well as of European "authors' rights" is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the "transformative" moment in the creative process.

The Authorship Collective goes on to cite examples of "biopiracy," the appropriation by pharmaceutical companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the plants' effective ingredients and profit from the sale of the "new" drug. For example:

The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as "Bushmen", although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia's properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by "mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we're full…thus curbing the appetite." (http://news.bbc.co.uk/2/hi/programmes/correspondant/2947810.stm) Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia "P57". Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring.

The death of the "author" in scientific papers

It has already been suggested on this blog that the development in the 18th Century of our notions of authorship may be inextricably intertwined with the development of copyright law as it existed before the digital revolution. And despite the fact law school seems to valorize judges as the "creators" of the common law through the opinions they "author," I myself have suggested that

[J]udicial writing as a quintessential example of collaborative writing, a view corroborated by the ways experienced lawyers use and interpret judicial opinions in practice. The judicial opinion is . . . a piece cobbled together from a number of other sources that include established law, the lawyers' written and spoken legal arguments, secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community.

I've also always emphasized to my students that lawyers, not judges, are the most important component of the never-ending collaborative legal writing project.

And now, from JR Enterprises Incorporated, here's a suggestion that we're fooling ourselves about whom we consider authors in another genre, scientific writing:

Coturnix writes: "But seriously now, the question of authorship on scientific papers is an important question. For centuries, every paper was a single-author paper. Moreover, each was thousands of pages long and leather-bound. But now, when science has become such a collaborative enterprise and single-author papers are becoming a rarity, when a 12-author paper turns no heads and 100-author papers are showing up more and more, it has become necessary to put some order in the question of authorship."

Maybe it's time instead to rethink the whole concept of authorship. Creation is almost always a collaborative process. I suppose rethinking the whole concept may in fact be what Coturnix has in mind inasmuch as he proposes a list of "credits" for scientific articles to detail the various contributions collaborators make to those articles.

conflicts between authors and publishers

In connection with the JibJab video using "This Land is Your Land," Lawrence Lessig points out that Woody Guthrie's family is untroubled by the video's use of the song. Ah, but Woody Guthrie's family doesn't own the copyright:

As Mark Frauenfelder and others have documented, the Guthrie family and probably Woody himself think the JibJab parody just fine. In the words of Grandaughter Cathy Guthrie (pictured here), "this parody was made for you and me."

But here's the thing: much of the JibJab Brouhaha was actually caused by a lack of author's rights....

I'm not speaking heresay: the point is that who controls the rights can matter as much, if not more, than what the rights are. Here, its publisher "The Richmond Organization" (TRO) and not the family, who controls the rights to "This Land." And Richmond's reaction was the opposite of Cathy's: "The damage to the song is huge," said Kathryn Ostien, director of copyright licensing, because "this puts a completely different spin on the song." (Why "different spin" = "huge damage" I'm not sure).

Yes, authors and creators can suffer fits of pique that can hurt the markets for secondary works. But their reasons for asserting copyright can be the subject of reasonable disagreement (example, colorized films). All that's a peppercorn compared to the historic abuses of copyrights controlled by publishers and disseminators.

The present tension between consumers and copyright is predated by a centuries-old war between publishers and authors. Those who read this site ought think carefully about how often the public and authors are actually on the same side.

This conflict between publishers and authors is exemplified of course too by the conflict between "U2" and Negativland, especially as expressed by the Edge.

Peter Jaszi, in "Toward a Theory of Copyright: The Metamorphoses of Authorship,'" 41 Duke L.J. 455, 468-469 (1991)(footnotes omitted)(pdf), identifies the very source of this conflict in the passage of the first copyright act:

"Authorship" first entered the domain of law in 1709, with the passage of the first copyright statute, the English Statute of Anne. While new to law at this time, however, the terminology of "authorship" had already acquired meaning in the realms of literature and philosophy. These early associations of the "authorship" concept helped to establish its place and ensure its persistence in the copyright doctrine.

Although labelled "An Act for the Encouragement of Learning," the statute was, in fact, promoted primarily by the London-based fraternity of British publishers (then designated "stationers" and "booksellers"). Throughout the previous century, the publishers had the book trade comfortably to themselves as the result of a bargain struck between the Crown and their venerable publishing guild. The Honorable Company of Stationers had received a monopoly over publishing in exchange for a promise of rigorous self-censorship, including the suppression of treasonous and seditious materials. By the century's end, however, this old order had effectively collapsed, as established publishers faced unprecedented competition from domestic and foreign pirates. Their preferred solution was to solicit legislation that gave the "proprietors" of "copyrights" a right of action against those who trespassed on their literary property. The publishers expected, of course, that in most instances, they would be the "proprietors."

As the campaign for new legislation gained force, however, a problem of legislative draftsmanship remained: How would the new statutory rights get into the hands of the publisher/proprietors? Although the rights could have been awarded to the publishers directly, the chosen solution was to vest the rights initially in "authors," with the understanding that the publisher eventually would assume control. Before and after 1710, publishers typically purchased writers' manuscripts for lumpsum payments; such a purchase included the writer's "right of first publication," and after the statute, it also entailed a transfer of the copyright itself.

Appropriation

Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary. This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic Poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique -- in a word, "original" -- work which, accordingly, may be said to be the property of its creator and to merit the law's protection as such.

Thus, copyright owners find it incredibly useful to interpret current copyright doctrine to mean that the default is that any use of an existing work infringes unless specifically excepted. The Copyright Act promotes public access to knowledge because it provides an economic incentive for authors to publish books and disseminate ideas to the public. Harper & Row, 471 U.S. at 558, 105 S. Ct. at 2229 ("By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."). The Supreme Court has recognized that "[t]he monopoly created by copyright thus rewards the individual author in order to benefit the public." Id. at 546, 105 S. Ct. at 2223 (quoting Sony Corp. of America v. Univ. City Studios, Inc., 464 U.S. 417, 477, 104 S. Ct. 774, 807 (1984) (Blackmun, J.,dissenting)). Without the limited monopoly, authors would have little economic incentive to create and publish their work. Therefore, by providing this incentive, the copyright law promotes the public access to new ideas and concepts.

Some legal institutions find much to recommend this interpretation. To begin with, there is ease of enforcement. Get a license or do not sample. These institutions do not see this requirement of a license as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a "riff" from another work in his or her recording, he is free to duplicate the sound of that "riff" in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another's work product.

This attitude has led to some remarkable lawsuits. Mike Batt is a British classical composer who put together a group called "The Planets" in 2001. Their first album was called Classical Graffiti. In it Batt included a track with one full minute of silence. He said it was a tongue-in-cheek dig at a John Cage piece called 4 minutes 33 seconds which was similarly a track of total silence, albeit somewhat longer. Batt, credited himself as well as Cage with writing the piece. There would be precious few other ways to identify who the dig was directed at. Unfortunately, Batt soon found himself on the receiving end of a lawsuit from the estate of John Cage, who had died several years previous. In the trustees' view "We do feel that the concept of a silent piece - particularly as it was credited by Mr Batt as being co-written by 'Cage' - is a valuable artistic concept in which there is a copyright."

As the term suggests, appropriation art borrows common images from advertising, the mass media and elsewhere, places them in new contexts and, thereby, aims to change the way we think about these images. Some appropriation art, such as Duchamp's use of found objects, doesn't implicate copyright at all. But when the borrowed image is copyrighted, appropriation art risks infringing the rights of the copyright owner.

But might conceptual appropriations provides new insights into the original? If so, we might think twice before legally condemning it. Still, it must be noted that the art community is itself divided on appropriation art, with some artists whose works have been appropriated viewing the appropriators as destroying art.

Nevertheless, the claim that the concept of authorship in literature is intimately related to that which operates in law is principally an historical claim that copyright law, romantic authorship and the overpowering significance of the author were ‘born together’. That is, the link established in law between an author and a work, and the romantic conceptualization of the work as the organic emanation from an individual author, emerged simultaneously at the end of the eighteenth century. The consequence of this, it is claimed, is that the literary critique of authorship threatens the intellectual foundations of copyright law. If the legal walls establishing ownership of the text were built on the same intellectual foundations as romantic authorship, and those premises turn out to be sand rather than rock, copyright will sooner or later come tumbling down.

Moreover, while parts of the arts and legal communities might believe that any unauthorized appropriation runs up against the biblical adomonition, Thou shalt not steal," without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling -- without influences great and small in other words -- there is no " creating.” No hip hop, sure, but also no blues, no Disney, no Shakespeare. No Lolita or “I have a dream.” We’d be reduced to staring at campfires and barking at one another.

I realized this forcefully when one day I went looking for the John Donne passage quoted above. I know the lines, I confess, not from a college course but from the movie version of 84, Charing Cross Road with Anthony Hopkins and Anne Bancroft. I checked out 84, Charing Cross Road from the library in the hope of finding the Donne passage, but it wasn't in the book. It's alluded to in the play that was adapted from the book, but it isn't reprinted. So I rented the movie again, and there was the passage, read in voice-over by Anthony Hopkins but without attribution. Unfortunately, the line was also abridged so that, when I finally turned to the Web, I found myself searching for the line “all mankind is of one volume” instead of “all mankind is of one author, and is one volume.”

My Internet search was initially no more successful than my library search. I had thought that summoning books from the vasty deep was a matter of a few keystrokes, but when I visited the website of the Yale library, I found that most of its books don't yet exist as computer text. As a last-ditch effort I searched the seemingly more obscure phrase “every chapter must be so translated.” The passage I wanted finally came to me, as it turns out, not as part of a scholarly library collection but simply because someone who loves Donne had posted it on his homepage. The lines I sought were from Meditation 17 in Devotions upon Emergent Occasions, which happens to be the most famous thing Donne ever wrote, containing as it does the line “never send to know for whom the bell tolls; it tolls for thee.” My search had led me from a movie to a book to a play to a website and back to a book. Then again, those words may be as famous as they are only because Hemingway lifted them for his book title.

In fact, from an artistic point of view, it is ponderously delusional to try to paint all these new forms of fragmentary sampling as economically motivated "theft", "piracy", or "bootlegging". We reserve these terms for the unauthorized taking of whole works and reselling them for one's own profit. Artists who routinely appropriate, on the other hand, are not attempting to profit from the marketability of their subjects at all. They are using elements, fragments, or pieces of someone else's created artifact in the creation of a new one for artistic reasons. These elements may remain identifiable, or they may be transformed to varying degrees as they are incorporated into the new creation, where there may be many other fragments all in a new context, forming a new "whole". This becomes a new "original", neither reminiscent of nor competitive with any of the many "originals" it may draw from. This is also a brief description of collage techniques which have developed throughout this century, and which are universally celebrated as artistically valid, socially aware, and conceptually stimulating to all, it seems, except perhaps those who are "borrowed" from.

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heard when it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone's music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce. These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material's avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner in their usage. . . .

Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.

In fact, compliance with copyright law results in the guarantee of copyright to the author only for a limited time, but the author never owns the work itself. This has an important impact on modern interpretation of copyright, as it emphasizes the distinction between ownership of the work, which an author does not possess, and ownership of the copyright, which an author enjoys for a limited time. In a society oriented toward property ownership, it is not surprising to find many that erroneously equate the work with the copyright in the work and conclude that if one owns the copyright, they must also own the work. However, the fallacy of that understanding is exposed by the simple fact that the work continues to exist after the term of copyright associated with the work has expired. "The copyright is not a natural right inherent in authorship. If it were, the impact on market values would be irrelevant; any unauthorized taking would be obnoxious." Pierre Leval, Towards a Fair Use Standard, 105 Harv. L. Rev. 1105, 1124 (1990).

We are not, however, a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers' backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.

In order to strike the balance between the copyright owner’s property interest in his creation against society’s interest in being able to use that creation, there is a swing toward the view enunciated by Judge Pierre Leval in his article “Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990). In that article, Leval wrote that in order to constitute a non-infringing fair use, an unauthorized use of copyrighted material

must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.

Thus, In perhaps the most influential case current case on the legitimacy of artistic appropriation, the court made clear that “[t]he test for whether [the appropriating art] is ‘transformative,’" and therefore non-infringing, “is whether it ‘merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’"

What does all this mean? Good question. Changing material conditions will almost always require the law on which they are based to change. And if anything is clear, it is that we are in a period in which the material conditions concerning the reproduction and dissemination of art are in flux. But one thing is clear: these questions will be asked and likely answered in the not-too-distant future. Hang on.

Postscritpt: This post steals its method from Jonathan Lethem's essay, "The Ecstacy of Influence, A Plagiarism. As Open Source explains, “[n]early every word of [Lethem's] essay about cultural borrowing and reworking was stolen — er, appropriated — from some other source and then cobbled together with a big dose of Lethem magic to form a cohesive whole.” So too does this post cobble together, albeit with very little of my magic, other sources in an effort to make a cohesive, if open-ended, whole. The pieces (which include, among many other sources, Lethem’s essay, Open Source’s discussion of it, and my own What is Fair Use? blog) are all indicated by the hyper-links beginning each appropriation.

Douglas Gordon on his 24 Hour Psycho

Douglas Gordon's 24 Hour Psycho:

		24 Hour Psycho The exhibition begins with 24 Hour Psycho (1993), a slowed-down version of Alfred Hitchcock's 1960 film Psycho. A different take on a familiar classic, it introduces many of the important themes in Gordon's work: recognition and repetition, time and memory, complicity and duplicity, authorship and authenticity, darkness and light.
		Douglas Gordon in his own words: "24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation... it wasn't a straightforward case of abduction. The original work is a masterpiece in its own right, and I've always loved to watch it. ... I wanted to maintain the authorship of Hitchcock so that when an audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or not at all, about me...

Kansas Joe McCoy and Memphis Minnie; Led Zeppelin; Bob Dylan

Dylan claims authorship of the words and music to his song.

Economic Right, Moral Right, and Database

More from the Authorship Collaborative of CWRU's English Department:

Copyright protections are ubiquitous to contemporary Western societies, but the rationales behind them are widely divergent. The two basic categories of defense for copyright are the doctrine of Economic Right and the doctrine of Moral Right. Economic Right maintains that copyright protections are intended to encourage innovation by protecting what is rightfully the property of the creator because of his labor and "creative spark," and is thus concerned more with balancing the rights of creators with market access. On the other hand, Moral Right views the work as being in some way an extension of the creator's self, and therefore sees a need for more expansive protections. This difference generally represents the difference between the American (economic) justification and the European (moral) justification, and is well illustrated by the differing approaches of the United States and the European Union to the question of databases.

Authorship in Video Games

From Flash of Steel, via JR Enterprises Incorporated:

Yesterday I was exchanging emails with a friend who has moved into game development and he talked about how collaborative the process is; how the idea of the lead designer we grew up with is increasingly irrelevant. You still need a central repository to bring all these ideas together, but design is messy. Still, there is a tendency for game journalists and gamers to attach a name to the development process. Miyamoto, Jaffe, Carmack…these are our movie stars and there is a lot to be gained in putting them up front. The idea of the Game God persists even as the industry becomes less dependent on original breakthrough designs and more dependent on a consistent collection of talent.

The First Amendment's relationship with the Fair Use Doctrine

In SunTrust Bank v Houghton Mifflin Co. 268 F3d 1257, 60 USPQ2d 1225, 14 FLW Fed C 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001), the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind. The district court found the newer book infringed on the copyright of decedent's book, that irreparable injury could be presumed, and granted a preliminary injunction. On appeal, the publisher argued that there was no substantial similarity between the two works or, in the alternative, that the doctrine of fair use, 17 U.S.C.S. § 107, protected the newer book because it was primarily a parody. The 11th Circuit found that the newer book was clearly a parody, a specific criticism of and rejoinder to the decedent's book, that it provided social benefit by shedding light on the earlier work. Although fair use was an affirmative defense, the trustee had the burden of proof to obtain injunctive relief. It was also apparent that there would be little risk of market substitution, as the works were unlikely to be confused. In vacating the preliminary injunction against publication of The Wind Gone Wrong, the 11th Circuit stated that

the court held First Amendment privileges are also preserved through the doctrine of fair use. Until codification of the fair-use doctrine in the 1976 Act, fair use was a judge-made right developed to preserve the constitutionality of copyright legislation by protecting First Amendment values. Had fair use not been recognized as a right under the 1976 Act, the statutory abandonment of publication as a condition of copyright that had existed for over 200 years would have jeopardized the constitutionality of the new Act because there would be no statutory guarantee that new ideas, or new expressions of old ideas, would be accessible to the public. Included in the definition of fair use are "purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research." Section 107. The exceptions carved out for these purposes are at the heart of fair use's protection of the First Amendment, as they allow later authors to use a previous author's copyright to introduce new ideas or concepts to the public. Therefore, within the limits of the fair-use test any use of a copyright is permitted to fulfill one of the important purposes listed in the statute.

Because of the First Amendment principles built into copyright law through the idea/expression dichotomy and the doctrine of fair use, courts often need not entertain related First Amendment arguments in a copyright case. See, e.g., Eldred, 239 F.3d at 376 (where the works in question "are by definition under copyright; that puts the works on the latter half of the 'idea/expression dichotomy' and makes them subject to fair use. This obviates further inquiry under the First Amendment."); Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999) ("We have repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the ground that First Amendment concerns are protected by and coextensive with the fair use doctrine."); Los Angeles News Serv. v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992) ("First Amendment concerns are also addressed in the copyright field through the 'fair use' doctrine.").

The case before us calls for an analysis of whether a preliminary injunction was properly granted against an alleged infringer who, relying largely on the doctrine of fair use, made use of another's copyright for comment and criticism. As discussed herein, copyright does not immunize a work from comment and criticism. Therefore, the narrower question in this case is to what extent a critic may use the protected elements of an original work of authorship to communicate her criticism without infringing the copyright in that work. As will be discussed below, this becomes essentially an analysis of the fair use factors. As we turn to the analysis required in this case, we must remain cognizant of the First Amendment protections interwoven into copyright law.

Sun Trust, 268 F.3d at 1264-65

Code of Best Practices for using copyrighted materials in online video

American University's Center for Social Media "a code of best practices" that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use."

The authors make clear that "this code of best practices does not tell you the limits of fair use rights. . . . It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can. . . . It’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu."

Then what is it? Essentially, it's a guide to what professionals actually are doing:

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

Regular readers of this blog will not be surprised at the views of authorship and creation that inform this code of best practices. Fans of Girl Talk and the class that originated this blog will be particularly interested in the code's claim that it is fair use to "to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between these elements.