00:00:14
To be entitled to
copyright protection,
00:00:16
something must be original.
00:00:18
That term encompasses two
distinct requirements.
00:00:22
The first is
independent creation.
00:00:26
If you copy your work
from someone else,
00:00:28
you can not assert
a copyright in it.
00:00:31
Suppose, for example, that
you read a poem and like it.
00:00:34
You memorize it, then you
write it down verbatim.
00:00:37
Someone photocopies the
piece of paper on which
00:00:40
you have written down the poem.
00:00:41
Do you have a copyright
claim against the person
00:00:44
who makes the photocopy?
00:00:45
No.
00:00:46
The author who first created
the poem might, but you don't.
00:00:52
That's certainly true
if the poem is recent
00:00:53
and still covered by copyright.
00:00:55
But what if the poem is old and
no longer covered by copyright?
00:01:00
You still have no claim
against the person
00:01:02
who makes the photocopy, because
your work is not original.
00:01:08
Here's a more plausible example:
Rodin's famous sculpture,
00:01:12
"The Thinker," was
created in 1902 --
00:01:15
and thus (as we will see) is
no longer subject to copyright
00:01:18
protection.
00:01:19
Suppose that you make a
perfect replica of The Thinker.
00:01:22
Do you have a copyright
in your replica?
00:01:25
In other words, if someone
copies your replica,
00:01:28
do you have a legal claim
against the copyist?
00:01:32
No.
00:01:33
The same principle applies
-- certainly in the US
00:01:36
and probably in
other countries --
00:01:38
if you take a photograph
of an old painting,
00:01:41
like the Mona Lisa, trying to
recreate the painting exactly.
00:01:47
This is not a
hypothetical example.
00:01:49
A few years ago, there was
a sharped-edged controversy
00:01:52
between the National
Portrait Gallery in England
00:01:55
and one Derrick Coetzee, who
uploaded to Wikipedia some 3000
00:02:01
high-resolution photos, taken
by the Portrait Gallery,
00:02:04
of old paintings
in its collection.
00:02:07
Coetzee invoked this principle
when resisting, successfully,
00:02:11
the Gallery's copyright claims.
00:02:13
Because the photos
lacked originality,
00:02:16
they were not
shielded by copyright.
00:02:20
As we will see later,
the question becomes more
00:02:22
complicated if your replica
or painting of a public-domain
00:02:26
work is not perfect
-- in other words,
00:02:29
if you have made changes to The
Thinker or altered the colors
00:02:33
of the Mona Lisa.
00:02:34
But if your replica is
verbatim, you have no rights.
00:02:39
So, to repeat, the first
of the two requirements
00:02:43
encompassed by the
term originality
00:02:45
is independent creation.
00:02:48
The second requirement
is creativity.
00:02:50
To be entitled to
copyright protection,
00:02:53
a work must embody a modest
amount of creativity.
00:02:56
Not much, but some.
00:03:00
This is the more
interesting and subtle
00:03:01
of the meanings of
originality, and we'll
00:03:03
spend a fair amount
of time exploring it.
00:03:06
Before doing so, however, we
need to identify some related
00:03:10
characteristics that are
not required for copyright
00:03:12
protection -- and
consider why not.
00:03:15
Once we have cleared
away this underbrush,
00:03:18
we'll return to the
question of creativity.
00:03:23
The first thing not encompassed
by the Originality requirement
00:03:26
is novelty.
00:03:28
To be protected in
the United States,
00:03:30
a work does not have to be new.
00:03:33
In this respect,
copyright law is
00:03:35
very different from patent law.
00:03:37
To be patentable, an
invention must be new.
00:03:40
To be protected by copyright,
a literary or artistic work
00:03:44
need not.
00:03:47
The classic statement of
this principle in US law
00:03:50
appears in the Sheldon case,
decided by the Second Circuit
00:03:53
Court of Appeals.
00:03:54
Because Judge Hand's
language is involuted,
00:03:57
I'll put in up on the screen:
00:04:01
Borrowed the work
must indeed not be,
00:04:04
for a plagiarist is not
himself pro tanto an "author";
00:04:09
but if by some magic, a man
who had never known it were
00:04:12
to compose anew Keats's
Ode on a Grecian Urn,
00:04:15
he would be an "author,"
and, if he copyrighted it,
00:04:19
others might not copy that poem,
though they might of course
00:04:23
copy Keats's.
00:04:26
In other words, if
your creation is
00:04:28
identical to an
already existing work,
00:04:31
but you are genuinely unaware
of that existing work,
00:04:34
your creation is original,
and you get the benefit
00:04:37
of copyright protection.
00:04:39
Novelty is not necessary.
00:04:43
To be sure, as Professor
Paul Goldstein observes,
00:04:46
lack of novelty, though
not itself fatal,
00:04:49
may sometimes be
introduced in litigation
00:04:51
to undermine other aspects
of a plaintiff's case.
00:04:55
For example, it can be used
to rebut a presumption that
00:04:59
the plaintiff's work was
independently created -- which,
00:05:02
as we've seen, is required
for copyright protection.
00:05:06
Or a defendant can
sometimes use the fact
00:05:08
that the plaintiff's work
is not novel to argue
00:05:11
that the defendant did not
copy the plaintiff's work,
00:05:14
but instead copied
the preexisting work.
00:05:17
That's the import of
the last clause in Judge
00:05:20
Hand's statement -- "though they
might of course copy Keats'."
00:05:26
If true, that would get
the defendant off the hook.
00:05:30
The upshot is that, in practice,
novelty helps a plaintiff,
00:05:34
and lack of novelty can hurt.
00:05:36
But strictly speaking,
novelty is not
00:05:38
required for
copyright protection.
00:05:43
Another thing that is not
required for copyright
00:05:45
protection -- at least in the
United States --is intent to be
00:05:47
original.
00:05:48
To get the benefit of
copyright protection,
00:05:51
it's not necessary
that you, the author,
00:05:53
try to create
something of your own.
00:05:56
It's only necessary
that you do so.
00:05:59
The classic statement of this
principle in US law comes
00:06:02
in an opinion by Judge Jerome
Frank in the 1951 Alfred Bell
00:06:07
case, which held that, even
if mezzotint engravings of old
00:06:12
(public-domain) paintings
differed from the originals
00:06:16
only inadvertently, they
were still copyrightable.
00:06:21
"A copyist's bad eyesight
or defective musculature,
00:06:26
or a shock caused by
a clap of thunder,
00:06:29
may yield sufficiently
distinguishable variations.
00:06:33
Having hit upon such a
variation unintentionally,
00:06:36
the 'author' may adopt it
as his and copyright it."
00:06:43
As you might imagine, this
issue doesn't arise often,
00:06:45
and one can find some
judicial opinions that
00:06:47
seem to cast doubt upon it.
00:06:49
But the principle
expressed by Judge Hand
00:06:52
is the canonical view
in the United States.
00:06:56
A third thing not required
for copyright protection
00:06:59
is that the work in
question be artistic.
00:07:02
If your creation is bad
art -- or not art at all --
00:07:07
you still get a copyright in it.
00:07:10
The classic statement
of this principle
00:07:12
comes in the 1903
Bleistein case,
00:07:14
which involved a copyright
claim to 3 circus
00:07:17
posters, one of which
is shown on the screen.
00:07:21
In some famous passages in the
majority opinion in that case,
00:07:25
Justice Holmes rejected
the defendant's argument
00:07:28
that these posters did not
enjoy copyright protection
00:07:31
because they did not
constitute "fine art."
00:07:35
In US law, Bleistein
has come to stand
00:07:39
for the principle
sometimes referred
00:07:41
to as "aesthetic neutrality."
00:07:43
When applying copyright law, the
quality or artistic character
00:07:49
of both the plaintiff"s work and
the defendant's work are said
00:07:52
to be irrelevant.
00:07:54
A child's finger paintings
are as deserving of copyright
00:07:58
protection as the Mona Lisa.
00:08:01
Why?
00:08:02
What might justify this stance
of strict aesthetic neutrality?
00:08:07
Defenders of this principle
commonly make four arguments.
00:08:10
The first is that
judges (or juries)
00:08:13
who would be called
upon to assess
00:08:14
the merit of either the
plaintiff's or the defendant's
00:08:17
works, lack the
expertise to do so.
00:08:21
Justice Holmes emphasizes
this point in Bleistein:
00:08:26
"It would be a
dangerous undertaking
00:08:27
for persons trained
only to the law
00:08:30
to constitute themselves
final judges of the worth
00:08:33
of pictorial illustrations,
outside of the narrowest
00:08:36
and most obvious limits.
00:08:38
At the one extreme
some works of genius
00:08:41
would be sure to
miss appreciation.
00:08:43
Their very novelty would
make them repulsive
00:08:45
until the public had
learned the new language
00:08:47
in which their author spoke.
00:08:49
It may be more than
doubted, for instance,
00:08:51
whether the etchings of Goya
or the paintings of Manet
00:08:55
would have been sure
of protection when
00:08:57
seen for the first time.
00:08:59
At the other end,
copyright would
00:09:01
be denied to pictures
which appealed to a public
00:09:04
less educated than the judge."
00:09:09
The second argument,
latent in the last sentence
00:09:12
of Holmes' passage,
is fear of elitism --
00:09:15
worry that an upper class would
use the opportunity to assess
00:09:19
artistic quality to impose
their tastes on the rest
00:09:23
of the population.
00:09:26
The third, related argument
is fear of paternalism --
00:09:30
or what has come more recently
to be called parentalism.
00:09:34
This argument is tied to the
political theory of liberalism,
00:09:38
which continues to have
considerable sway at least
00:09:41
in western democratic societies.
00:09:44
The basic idea is that
governments should not impose
00:09:48
on their citizens any particular
conception of the good --
00:09:53
or the good life
in particular --
00:09:55
but rather should create
conditions in which people are
00:09:58
free to formulate and
pursue their own conceptions
00:10:01
of the good.
00:10:02
One implication of that
idea, it is sometimes argued,
00:10:06
is that the law --
specifically copyright law --
00:10:10
should not promulgate a
particular conception of what
00:10:13
counts as worthy art.
00:10:17
In the United
States, this attitude
00:10:19
finds expression in
periodic campaigns
00:10:21
to abolish the
National Endowment
00:10:22
for the Arts, which distributes
government funds to artists.
00:10:27
Most other countries are less
hostile to government support
00:10:30
for the arts.
00:10:33
The final argument in
favor of the principle
00:10:35
of aesthetic neutrality
is that, to decide
00:10:38
what constitutes good art,
one needs to know what art is,
00:10:42
and there's deep disagreement
on that crucial question.
00:10:46
As Professor Fred
Yen has pointed out,
00:10:49
at least three different
meanings of art
00:10:53
are in widespread circulation.
00:10:57
Formalism, exemplified by
the work of Clive Bell,
00:11:00
defines art as things capable
of provoking in sensitive people
00:11:05
the aesthetic emotion.
00:11:08
Some objects have formal
qualities that enable them
00:11:11
to cause this reaction
while others don't.
00:11:14
Only the former count as art.
00:11:19
By contrast
intentionalism, exemplified
00:11:22
by the work of Monroe
Beardsley, defines art
00:11:25
as "something produced with
the intention of giving it
00:11:28
the capacity to satisfy
the aesthetic interest."
00:11:32
So, for example, whether
people moving in a circle
00:11:36
are engaged in a form of
art depends on the nature
00:11:39
of their motivation.
00:11:40
Their purpose might be
religious (as in a ceremony),
00:11:43
it might be political or
economic (as in a picket line),
00:11:48
or it might be artistic
(as in the dance).
00:11:51
Only if their intention
falls into the last category
00:11:55
does their behavior
constitute art.
00:11:59
Finally, institutionalism,
exemplified by the work
00:12:03
of George Dickie, emphasizes
the role of the "art world" --
00:12:07
""[t]he broad social institution
in which works of art have
00:12:10
their place."
00:12:12
The members of this world
include artists and viewers
00:12:16
who participate in the
traditional social practice
00:12:18
of creating, presenting,
and appreciating art.
00:12:22
Against this backdrop,
"objects become art
00:12:26
when someone who believes that
he is a member of the art world
00:12:29
invites others to view
the object aesthetically."
00:12:35
In the simplest case, an
object constitutes art
00:12:38
if a museum chooses
to display it.
00:12:43
These 3 approaches --
formalism, intentionalism,
00:12:46
and institutionalism --
are in obvious tension.
00:12:50
Some objects or
activities qualify as art
00:12:53
under one approach,
but not under others.
00:12:55
If aesthetic theorists cannot
resolve this crucial question,
00:12:59
surely it would be foolish for
the law to attempt to do so.
00:13:05
So those are the 4
arguments commonly
00:13:07
deployed in support
of the principal
00:13:09
of aesthetic neutrality.
00:13:11
Lack of expertise,
unease about elitism,
00:13:15
hostility to governmental
involvement in art,
00:13:18
and uncertainty concerning
what constitutes
00:13:21
art in the first place.
00:13:23
However, as we will
see, the principle
00:13:25
of aesthetic neutrality
is frequently
00:13:27
violated-tacitly and
occasionally expressly-even
00:13:32
in the United States,
which purports
00:13:34
to adhere to the
principle most faithfully.
00:13:36
Judges and juries find ways
to favor plaintiffs who
00:13:41
have created what they
consider meritorious works,
00:13:43
and to disfavor plaintiffs who
have created what they consider
00:13:47
bad or unimpressive material.
00:13:49
On the other side of the
ledger, judges and juries
00:13:53
find ways to penalize defendants
whose work seems poor,
00:13:57
and to give extra latitude
to defendants whose
00:14:00
work seems worthy of respect.
00:14:04
Professor Yen and others argue
that, if judges and juries are
00:14:08
going to be making
such judgments,
00:14:10
they should do so
expressly-and should be obliged
00:14:13
to justify their judgments.
00:14:17
This is a fairly
fundamental issue,
00:14:19
on which, as we will see,
countries differ sharply.
00:14:22
By the end of the
series of lectures,
00:14:25
I hope you are in
a position to form
00:14:26
your own opinion
concerning the scope
00:14:29
and merits of the principle
of aesthetic neutrality.
00:14:35
Yet another characteristic
not required
00:14:37
for copyright protection is
that a work be noncommercial.
00:14:41
This is not quite as
obvious as it might seem.
00:14:44
For example, Justice Harlan,
in a dissenting opinion
00:14:47
in the Bleistein case,
suggested that advertisements
00:14:51
will be produced in at least
optimal quantities, regardless
00:14:55
of whether they are
protected by copyright.
00:14:57
In other words, copyright
protection for ads
00:15:00
is unnecessary.
00:15:01
Whatever the merits of Harlan's
position, it has been rejected.
00:15:05
Today, advertisements
definitely enjoy the protection
00:15:09
of the copyright law.
00:15:12
A final characteristic
not required
00:15:14
for copyright protection
in the United States
00:15:16
is that the content
of a work be lawful.
00:15:19
So, for example, it's
now reasonably clear
00:15:21
that, in the US,
obscene, libelous,
00:15:25
or fraudulent material
enjoys copyright protection.
00:15:29
In this respect,
US copyright law
00:15:32
differs sharply from
US trademark law,
00:15:34
which denies protection to
immoral or scandalous marks.
00:15:39
Copyright law purports to
have no such exclusions.
00:15:46
Having listed the things
that copyright does not
00:15:48
require, let's now return
to what it does require.
00:15:52
As I mentioned
earlier, to satisfy
00:15:54
the requirement of originality,
a work must pass two tests:
00:15:58
it must be
independently created,
00:16:01
and it must embody some
degree of creativity.
00:16:04
The more important and
slippery of these tests
00:16:07
relates to creativity.
00:16:09
How much do you need?
00:16:12
In the United
States, very little.
00:16:14
In its 1991 decision
in the Feist case,
00:16:18
the Supreme Court
put it this way:
00:16:21
A work must possess "at
least some minimal degree
00:16:24
of creativity.
00:16:26
To be sure, the requisite level
of creativity is extremely low;
00:16:30
even a slight
amount will suffice.
00:16:32
The vast majority of works
make the grade quite easily,
00:16:36
as they possess some creative
spark, 'no matter how crude,
00:16:40
humble or obvious' it might be."
00:16:44
As the Court notes,
it's pretty easy
00:16:46
to pass the test
formulated in this way.
00:16:49
Take photographs, for example.
00:16:52
In 1884, the Supreme
Court ruled that this
00:16:55
staged studio photo
of Oscar Wilde
00:16:59
enjoyed copyright
protection, emphasizing
00:17:02
the many forms of creativity
that went into setting
00:17:05
up and producing the photo.
00:17:06
Today, it's clear that nothing
so elaborate is necessary.
00:17:10
In the US, a snapshot taken
with a modern automated
00:17:15
point-and-shoot camera
contains enough creativity
00:17:18
to satisfy the Feist standard.
00:17:21
The modest creativity
involved in deciding
00:17:24
what to point the camera at, and
when to activate the shutter,
00:17:28
is enough.
00:17:31
But some degree of
creativity is necessary.
00:17:35
The most important effect
of this requirement
00:17:38
is to withdraw
copyright protection
00:17:40
from works whose form is
entirely conventional, even
00:17:44
if they required lots of
effort and/or skill to create.
00:17:48
At one point, courts in the
US (and in other common-law
00:17:53
countries) extended copyright
protection to such works under
00:17:56
the auspices of the so-called
'sweat-of-the-brow" theory.
00:18:00
Since the 1991 Feist
decision, that doctrine
00:18:04
has been formally
rejected by US courts.
00:18:08
I hasten to add that,
in practice, it's
00:18:11
not so clear that a plaintiff's
labor does him no good when
00:18:14
seeking copyright protection.
00:18:16
Despite the formal repudiation
of the sweat-of-the-brow
00:18:19
theory, in borderline cases,
some courts still pay attention
00:18:24
to the effort that authors
have invested in their works.
00:18:28
Again, this is a
general theme we'll
00:18:30
return to in lecture
#2, when we take up
00:18:33
the Fairness and Personality
Theories of Intellectual
00:18:36
Property.
00:18:39
Thus far, I have
confined my attention
00:18:41
to the interpretation of
the originality requirement
00:18:43
in the United States.
00:18:45
Now let's examine some
other jurisdictions.
00:18:49
Today, every
country in the world
00:18:51
treats originality as
an essential requirement
00:18:54
for copyright protection.
00:18:56
But not all define
"originality" the same way.
00:18:58
A few decades ago, countries'
disagreement on this issue
00:19:02
was sharp.
00:19:04
Generally speaking, countries
influenced by the common-law
00:19:07
tradition set the bar
very low, while countries
00:19:10
influenced by the civil-law
tradition were more demanding.
00:19:14
The two fields where this
disagreement mattered most
00:19:17
were photography and software.
00:19:19
As mentioned above, in
the US and its cousins,
00:19:24
virtually all photos
taken by people
00:19:26
have long enjoyed
copyright protection.
00:19:29
By contrast, as Roman Heidinger
has observed, in Austria
00:19:34
photographs were given
copyright protection
00:19:36
only if they differed
substantially
00:19:38
from pre-existing photographs.
00:19:41
Applying that standard,
a conventional photo
00:19:44
showing some bikers in a
landscape failed to qualify.
00:19:48
Likewise, as we will
see in Lecture #3,
00:19:51
software programs received
generous protection
00:19:53
in the US and its cousins.
00:19:55
In Germany, by contrast,
software programs
00:19:58
were accorded
copyright protection
00:20:00
only if they embodied
degrees of creativity
00:20:03
greater than that exercised
by average programmers.
00:20:08
Recently, the divergence
among countries
00:20:10
on these and related
issues has decreased.
00:20:12
As you can see from the map,
most common-law countries
00:20:16
have now repudiated the
permissive "sweat of the brow"
00:20:19
approach and adopted stances
similar (though not always
00:20:23
identical) to the approach
taken by the US Supreme
00:20:26
Court in Feist.
00:20:28
Meanwhile, harmonization
within the European Union
00:20:32
has resulted in a modest
softening of the requirements
00:20:35
that some of the member
countries previously enforced.
00:20:39
In a series of decisions,
the European Court of Justice
00:20:43
has announced and then refined
a new, general definition
00:20:46
of originality.
00:20:48
Under this new approach,
two related things
00:20:51
(in addition to
independent creation)
00:20:54
seem both necessary
and sufficient:
00:20:57
-- the creation reflects
the author's personality;
00:21:00
-- the author, when
creating the work,
00:21:04
was able to express her creative
ability by making unconstrained
00:21:08
choices and thus impressing
her personal touch on the work.
00:21:14
The articulation of this
standard by the European Court
00:21:17
of Justice has caused courts in
several of the member countries
00:21:20
of the EU to adjust their
originality thresholds --
00:21:23
in most cases downward.
00:21:25
In Austria, for
example, it's now easier
00:21:29
to secure copyright protection
for modestly creative photos
00:21:33
than it used to be.
00:21:34
And in Germany, a larger
set of software programs
00:21:37
are now eligible for
copyright protection;
00:21:39
the only things now excluded
are simple, routine programs
00:21:44
that ordinary programmers
would write the same way.
00:21:49
In combination, the
harmonization process in Europe
00:21:52
and the trend among
common-law countries
00:21:55
to abandon the sweat
of the brow theory
00:21:58
has reduced the divergence
among the countries
00:22:01
of the world concerning
the meaning of originality.
00:22:03
But some divergence remains.
00:22:06
For example, the European
standard alludes to a theme
00:22:10
that US lawmakers
generally ignore -- namely,
00:22:13
the degree to which a work
reflects the personality
00:22:16
of the creator -- a topic we'll
return to in the next lecture.
00:22:21
And there remain
outlier countries.
00:22:22
For example, South
Africa and New Zealand
00:22:24
still seem to adhere to the
sweat of the brow approach.
00:22:28
At the other extreme, courts
in Switzerland pay attention,
00:22:32
when considering originality,
to the degree of "statistical
00:22:37
uniqueness" of the
work in question --
00:22:40
an approach that suggests
concern with the novelty
00:22:43
of the work, a consideration
ignored in the overwhelming
00:22:47
majority of countries.
00:22:50
The upshot is that
some works are
00:22:52
more likely to secure copyright
protection in some countries
00:22:55
than in others.
