Class 2 Copyright Autumn 2019 Copying Randal C

Class 2 Copyright Autumn 2019 Copying Randal C. Picker James Parker Hall Distinguished Service Professor of Law The Law School The University of Chicago

106. Exclusive rights in copyrighted works n Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: u(1) to reproduce the copyrighted work in copies or phonorecords; u(2) to prepare derivative works based upon the copyrighted work; October 6, 2020 2

101: Derivative Work n A “derivative work” is a work based upon one or more preexisting works, usuch as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. October 6, 2020 3

101: Derivative Work u. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. October 6, 2020 4

TTYN (1 of 2) What Counts as a Copy? n Hypo 1 u. I take a picture of Stonehenge w Ignore fact is in UK u. You see my picture and are inspired by it u. You fly to Stonehenge and take another picture of it n I sue you for copyright infringement: who wins? October 6, 2020 5

TTYN (2 of 2) What Counts as a Copy? n Hypo 2 u. Again, I take a picture and again, you see it u. You say: “I could fly to Stonehenge to take a picture or I could Xerox this one. ” u. You copy it n I sue you for copyright infringement: who wins? October 6, 2020 6

Hypo 1 Answer We both get copyrights in our photographs n There is no copyright infringement n October 6, 2020 7

Hypo 2 Answer n Simple copyright infringement October 6, 2020 8

TTYN (1 of 2) What Counts as a Copy? n Hypo 3 u. I take a picture of Stonehenge u. You see my picture and are inspired by it u. You fly to Stonehenge and make a miniature model of it out of clay n I sue you for copyright infringement: who wins? October 6, 2020 9

TTYN (2 of 2) What Counts as a Copy? n Hypo 4 u. I take picture of Stonehenge, you see it. u. You decide to make a miniature model of Stonehenge out of clay u. Working from my picture, you build your model of Stonehenge n I sue you for copyright infringement: who wins? October 6, 2020 10

Hypo 3 Answer n No infringement October 6, 2020 11

Hypo 4 Answer n Tricky? u. No infringement? w Sculpted work won’t preserve lighting, camera angles w Should just re-create the original object built by the Druids October 6, 2020 12

Hypo 4 Answer n Tricky u. Infringement? : Holmes’s Statement in Bleistein w “Others are free to copy the original. They are not free to copy the copy. ” u. Implementing Holmes w Does the mini-Stonehenge made from looking at my photo copy the copy or copy the original? October 6, 2020 13

Rogers’s Puppies n Scanlon Hires Rogers to Photograph Puppies u. Rogers is paid $200 for prints by the Scanlons u. Rogers did the creative work in figuring out how to do the picture u. Rogers retained the copyright to the work October 6, 2020 14

Rogers’s Puppies n Rogers Licenses Work to Museum Graphics u 5, 000 notecards printed initially u. Subsequent printings October 6, 2020 15

Creating “String of Puppies” n 1988 Banality Exhibition at Sonnabend Gallery u. Koons looking create a group of art works u. Selects studios to do physical work of creating pieces u. Buys notecard of Puppies u. Tears off copyright notice and gives it executing artisans October 6, 2020 16

Authorship? n Not discussed here but note … u. Koons as animating creative force vs. artisans who actually build the thing in question n One author? Koons or the artisans? Joint authors? October 6, 2020 17

Banality Show October 6, 2020 18 Jeff. Koons. com (2 Oct 2019)

String of Puppies October 6, 2020 19 Jeff. Koons. com (2 Oct 2019)

String of Puppies October 6, 2020 20 cpyrightvisualarts. wordpress. com (2 Oct 2019)

The Lawsuit n Facts u. Koons sells three copies of String of Puppies for $367, 000 u. Keeps fourth copy for himself u. Friend of Scanlon sees picture of Koon’s work in LA Times, who in turn tells Rogers u. Rogers sues for infringement October 6, 2020 21

Copying the Work v. Accessing the Original n What limits how a subsequent user can access the original? u. Do I have to go directly to the original or can I access the original through someone else’s work? October 6, 2020 22

Why Not This? n Mini-Stonehenge obviously not a copy because u. Photo was just two-dimensional image of Stonehenge u. Mini-Stonehenge is 3 D form u. Change in dimensionality precludes copying? October 6, 2020 23

Now Rogers v. Koons n Should we say … u. Koons was just accessing original through the photograph ala the mini-Stonehenge example u. Koons also switched the dimensonality n Ergo no copying of copy, just 3 D implementation of original accessed through the photo? October 6, 2020 24

No Independent Original Here n Stonehenge Exists Separately u. I didn’t create Stonehenge when I took a picture of it; it existed already October 6, 2020 25

No Independent Original Here n Rogers Created Puppies ala Burrow-Giles u“It is not therefore the idea of a couple with eight small puppies seated on a bench that is protected, but rather Roger’s expression of this idea—as caught in the placement, in the particular light, and in the expressions of the subjects—that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable. ” October 6, 2020 26

102. Subject matter of copyright: In general n (a) u. Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. October 6, 2020 27

102. Subject matter of copyright: In general n (b) u. In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. October 6, 2020 28

Using The Idea: Idea Instructions n The Idea Behind Puppies u“… had appellant simply used the idea presented by the photo, there would not have been infringing copying …” October 6, 2020 29

Using The Idea: Idea Instructions n Hand this instruction to artisans: u“Please create a sculpture of a couple seated on a bench with eight small puppies. ” n What do we think the artisans would have produced? October 6, 2020 30

Calculating Damages n On the one hand u“… we think that a reasonable license fee for the use of ‘Puppies’ best approximates the market injury sustained by Rogers as a result of Koons’ misappropriation. ” n Meaning no harm to market for original work and harm was lost opportunity to license October 6, 2020 31

Calculating Damages n On the other hand u“… Rogers remains at liberty to elect statutory damages in lieu of an award of actual damages and apportioned profits. See 17 U. S. C. § 504(c). In fact, given Koons’ wilful and egregious behavior, we think Rogers may be a good candidate for enhanced statutory damages. ” October 6, 2020 32

Evidence of Copying and Substantial Similarity n Says the Second Circuit re The Ordinary Observer Test u“Substantial similarity does not require literally identical copying of every detail. Such similarity is determined by the ordinary observer test: the inquiry is ‘whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. ’” October 6, 2020 33

Two Images October 6, 2020 34

Two Images October 6, 2020 35

October 6, 2020 36

TTYN A Preliminary Conversation n Discuss the relationship between these two images u. Is there copying here? Does it differ from what went on in Rogers, Burrow-Giles or Bleistein? u. Are they substantially similar per the CA 2 test in Rogers v. Koons? October 6, 2020 37

Mechanics of Substantial Similarity n Three Steps u 1. Dissect the work w Meaning identify protected elements and unprotected elements and filter out the unprotected elements October 6, 2020 38

Mechanics of Substantial Similarity n Three Steps u 2. Apply the extrinsic test w “Assess the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression. ” October 6, 2020 39

Mechanics of Substantial Similarity n Three Steps u 3. Apply the intrinsic test w “… a more holistic, subjective comparison of the works to determine whether they are substantially similar in ‘total concept and feel. ” n Both extrinsic and intrinsic tests must be met for copying to be found October 6, 2020 40

Mechanics of Substantial Similarity n Considering the Tests u. What are the virtues/vices of this approach? u. How should we apply them here? October 6, 2020 41

Copies and Derivative Works Again n Question u. If the Nike photo isn’t a copy of Rentmeester’s original, what does that tell us about whether the work fixed in the Nike photo is a derivative work of Rentmeester’s original work? October 6, 2020 42

A Different Conversation n Incentives for Creation u. Do we think Rentmeester would have taken the original photo even if he had known of the subsequent use that Nike would make of it? u. Does that matter? Should that matter? October 6, 2020 43

A Third Image October 6, 2020 44