Copyrights and creativity

copyrights and creativity
Macaca self-photograph. No human creativity, so no copyright?

Copyright protection requires that a work have at least a minimum amount of human creativity, but the laws are vague as to what this minimum is.

Legally, US copyright protection is provided for information (typically preserved in a non-transitory medium) that has at least a small element of a human author’s own creativity. Courts have held that mere facts and ideas alone can’t be copyrighted. The amount of creativity can be very small, but it isn’t zero.  For example, using human judgment to select and compile facts according to personal criteria often qualifies, and an author’s annotations of facts may also qualify, but routine alphabetical sorting is not enough (Feist Publications v. Rural Telephone, 499 US 340, 1991) .

From an engineering or mathematical perspective, these rules may look vague. This is in part because these concepts date back hundreds of years, back to the early days of printing presses, and have evolved slowly over time through various laws and court decisions. However copyrights are big business, and copyright law enforcement tends to be efficient and harsh. So like them or not, the rules are important.

One area where the rules are fuzzy is short works, such as short sections of text or individual photographic images. What is the minimum work (creative information) that might get copyright protection?  The rules are not uniform throughout the world, and here we are discussing US laws.

Short text:  Very short text fragments are often considered too trivial (de minimis) for copyright protection, but the court will consider originality here, and more originality gets better protection. Although there is no minimum word-count cut off, text fragments of 11 words or less at the “news article” level of originality are often considered non-infringing.

Individual photographs:  Again the law requires a small amount of human creativity for copyright protection.  The US copyright office will not register works produced by non-humans, and lower court cases are consistent with this decision.  Additionally, exact copies of public domain work (Bridgeman Art Library v. Corel Corp.) are also exempt from copyright. Otherwise, the courts often ignore the creativity requirement.  This raises some interesting questions for future cases. However, unless the law changes, assume that copyright applies to nearly all human-produced photographs, no matter how repetitious, trivial or otherwise non-creative.

There are other copyright exceptions.  Federal Government work is often not copyrightable.  Further, under “fair use”, there can be additional exceptions where it is OK to reproduce another’s copyrighted work.  Fair use rules are complex and will be the topic of another discussion.

Copyright: DMCA vs Fair Use

39 steps movie poster and DMCA fair use example
39 Steps movie poster (copyright expired)

The DMCA (Digital Millenium Copyright Act) has created a great copyright law divide between analog and digital media. For analog works, traditional copyright principles such as “fair use” apply. For digital media, not so much, because the DMCA shifts the burden of proof.

Plays, for example, are an analog medium. A good way to understand the differences is to analyze a modern play, and see what elements might cause problems for digital content.

Traditional Copyright Law: The four-person play “39 steps” humorously interprets the classic 1935 Hitchcock film. Appropriately enough for our topic, the plot involves intrigue, secrets, and a falsely accused innocent man. This play is also a good example of how, at least for analog media, creatives who understand copyright law can use a mix of public domain and copyrighted source material in their own creative works.

The 1935 Hitchcock film has a US copyright that expires in 2026. The film had a large cast and budget, was a big success, and had dramatic elements that Hitchcock reused in later films.

By contrast, 39 steps (the play) was written in 1995 (later revised in 2005). It also has been very successful, first as a 9-year run in London, and since 2008, in the US.

What about copyright permission? The play was written so that permission wasn’t needed. The playwrights cleverly exploited various permissive areas of copyright law, including copyright term limits and fair use.

    • The movie was based on a now copyright-expired 1915 novel by John Buchan
    • The play uses many fair use copyright principles including:
        • Parody – the play pokes gentle fun at Hitchcock’s works
        • Transformation – the play uses clever tricks to reimagine the movie
        • Amount of material taken – Only short Hitchcock film references
        • Trivial impact on the potential market for the original 1935 film

This is traditional copyright law. It acts to protect the interests of content creators. It also acts, through fair use, to allow others to create new works.

DMCA Copyright Law:  Sadly, for digital media, copyright law presently suffers from regulatory capture. Specifically, the Digital Millennium Copyright Act (DMCA). Although the DMCA states that it “shall not affect” fair use, this is not the case. In reality, the DMCA has certain “guilty until proven innocent” features that have greatly damaged fair use. The “gotcha” is that legally, fair use does not mean “no” copyright infringement. Instead, traditionally, fair use is only a “defense” against an accusation of copyright infringement. So, under traditional law, all fair use material is still infringing, it is just OK infringement.

Takedown notices: The DMCA requires content servers, such as YouTube, to almost immediately remove content in response to a takedown notice. This happens when anyone representing a copyright holder asserts, in a takedown notice, that: the content “infringes”, and was unauthorized by the owner or by the law. There are no perjury penalties regarding the content assertions. (Perjury does apply if there was no authorization.)

Think that “or by the law” includes fair use? Maybe, but to what extent? Remember that traditionally, all fair use material still infringes, and it may literally take a Federal court to completely decide if the fair use is OK. This can be prohibitively expensive and time-consuming. So, a takedown notice that fails to consider, or only superficially considers, fair use is not committing perjury.  (No DMCA penalties if they did not tell the truth.)

Hence the 39 steps example. The DMCA switches the burden of proof and undermines centuries of fair use law. It gives us intrigue, secrets, and innocent persons accused of dastardly deeds.

All is not lost, however. Some recent developments include:

    • In an important 2015 ruling, the Federal 9th district (California) court held that 17 U.S.C. 107 requires at least a limited DMCA fair use analysis.  So copyright holders need to at least consider fair use, or at least pretend they did.
    • Due to the court decision, fair use is now a legitimate response to a takedown notice. For example, YouTube has a copyright counter-notification process to respond to takedown notices. YouTube states that it may consider, at least for the US, certain types of fair use defenses. Results may vary.
    • YouTube has also recently added an “explicit trim” function that enables video uploaders to avoid takedown by quickly removing allegedly infringing sections.

The bottom line is that digital content creatives need to be cautious. Don’t just quickly read about fair use, and assume that it will automatically protect your work from takedown notices. It won’t.

Copyright registration

copyright registration
Copyright registration

In the US, copyright registration is needed to enforce your copyrights. This can be done online at the Electronic Copyright Office (eCO).

In theory, copyright exists as soon as a work is created. But, thanks to the recent Supreme Court Fourth Estate v. Wallstreet.com ruling, without formal copyright registration, you can’t ask the courts to enforce or defend your legal rights.

Copyrights are registered at the United States Copyright Office. This office maintains an online electronic copyright registration website (eCO) at copyright.gov. Their website allows you to upload and file most (but not all) creative works, along with authorship and ownership information.

In addition to the work itself, other registration information that you need to provide includes work title, year of completion, date of first publication, and name of the authors. If you are claiming that you own the work (e.g. author or “work for hire”), you also need to state this and give the owner’s name and address. You also need to include a brief description of the work. You must also disclose any preexisting material that may be included in your uploaded work.  This preexisting material can include stock graphics or sounds, for example.

The website accepts a fairly decent range of common text, image, audio, and video file types, including pdf, rtf, doc, midi, jpg, pdf, png, mpg, mp3, mp4, avi, and mov. The website also accepts common compressed formats such as rar and zip.  The file sizes are limited by your connection speed and the website’s sixty-minute upload time limit. So at broadband speeds, Gigabyte+ sized files are possible. However, unless you pay extra for “full-term retention”, the copyright office will only guarantee to retain your file(s) for 20 years.

Although the submission process itself is quick, the copyright office then takes about 3 months (1-6 months) to process electronic submissions.  “Snail Mail” submissions can take twice as long! If there are problems with the submission, the copyright office will correspond with you and require that these problems be fixed.  This “correspondence” can delay registration by many more months.  You can pay extra for expedited registration, but you must also adequately explain why there is a rush.

There are some tricky aspects to the system. Many creative works are divided into sections, such as book chapters, images in a picture book, slide shows, video sections, music album tracks, and so on. Many creative works also combine more than one media (e.g. combine text, images, video, sound). The copyright office distinguishes between these different media types, and also distinguishes between individual works, “groups”, and “collections”. These have different filing fees and requirements. To ensure success and avoid “correspondence”, it is important to get this right.

Copyright legal actions often have short deadlines. Thus, it is generally a good idea to start the copyright registration process early (in advance of any legal problems), so that registration delays don’t cause you to blow a legal deadline.

Amazon and IP disputes

Amazon IP - Amazon acting like its own court
The court of Amazon

Amazon.com is enough of an 800-pound-gorilla that its IP policies can impact trademark, copyright, and patent strategy. Amazon is not kind to descriptive (supplemental register) trademarks.

Amazon.com markets products from millions of manufacturers and vendors, resulting in a large number of IP (trademark, copyright, and patent) disputes.

Unfortunately, the US court system is designed to administer slow, careful (and thus expensive) justice to a small number of IP litigants. It can’t scale to Amazon volumes. So Amazon decided to make its own IP dispute process.

Trademarks:

The Amazon Band Registry offers a number of methods to help trademark owners protect their rights and promote their products. However, at least for the US, just any trademark won’t work. The Amazon Brand Registry is presently only available for USPTO trademarks on the principal register. USPTO supplemental registry trademarks are out of luck.

The USPTO supplemental register is where otherwise OK, but “descriptive” trademarks are put to “age” for 5 years until the mark is considered to have “acquired distinctiveness”. So, the moral is that if you are planning to sell on Amazon, it is good to avoid the supplemental register. This can be done by registering a less descriptive product name.  There are trade-offs here, however, since descriptive names help customers understand the purpose of new products.

Copyrights:

Be careful about the text and images that you upload. It should either be your own material, or material that you have clear rights to (e.g. license, resale of previously purchased physical items). Amazon operates a Digital Millennium Copyright (DMCA) infringement reporting system that you (and others) can use to report issues. If you hold copyrights that you feel are important, consider registering them with the US copyright office, as this can make enforcement easier. Note, however, that under their terms of service, Amazon acquires a license to use your uploaded material.

Patents:

Amazon has recently announced a pilot patent dispute program.  The process is fast and (for patent law) inexpensive. The plaintiff provides the US patent number and the Amazon listing of the allegedly infringing product. Both parties can argue this (e.g. one submits written arguments for infringement, and the other submits written arguments in defense).  Both can pay $4,000 to submit their arguments to an Amazon selected neutral patent evaluator. The neutral evaluator evaluates the patent and product in question.

The winner gets their $4,000 fee back. The loser loses its fee. If the allegedly infringing product loses, Amazon will take down the listing. The neutral evaluator’s decisions are apparently final, but you can still go to the court system if you want.

Disclaimer: I have no affiliation with Amazon. Amazon IP policy can change at any time. However, Amazon is enough of an 800-pound-gorilla that their IP policies are having an impact on the IP ecosystem.

Contractor Copyrights

Contractor
Contractor

Want to pay a contractor to produce creative material for you, and then actually own the copyrights? Getting ownership of contractor copyrights is tricky.

Copyrighted material – be it text, images, music, or code, is important for many creative and commercial efforts. None of us have the time or talent to do all of this ourselves, and so it is natural to turn to experts to help provide this material.

We could hire employees for this purpose.  However, many projects are of limited duration, and alas, unlike “the good old days” where employees had no rights and could be hired and fired at whim, these days employees actually have rights and benefits. These include unemployment insurance, social security, tax withholding, and the like. No one wants to go back to the Victorian era, but at the same time, it can be a hassle to employ someone.

Contractors are often used to avoid this hassle.  Contractors are expected to deliver results, but to do so in their own way. We pay money, expect to obtain the benefit of the deal, and then no more hassles or obligations. This simple expectation breaks down when it comes to IP, however, and contractor copyrights are particularly tricky.

To somewhat oversimplify, if you want to pay someone and obtain ownership of copyrighted material in return, the following legal considerations can apply:

  • Under Federal law, full copyright ownership requires a “work for hire” agreement
  • “Work for hire” agreements may imply (and in California, can define) that the worker is an employee
  • Employees are legally entitled to various employee benefits
  • Contractors are not legally entitled to employee benefits
  • Absent an assignment, copyright ownership remains with the contractor
  • Copyright ownership assignments must be in writing
  • Copyright assignments that are not “work for hire” can be terminated by the author or heirs after 35 years

This creates interesting legal problems.  It is common to put “work for hire” terms in contract agreements. The idea is to automatically acquire full copyright ownership this way.  However, such “work for hire” terms can be inconsistent or even incompatible with the definition of “contractor”.  This can open the door to potential legal headaches.

In an alternative approach, there is no “work for hire” clause, but as part of the deal, the author-contractor agrees to assign all contractor copyrights to the work that you have paid for. This is not perfect either. Additional assignment paperwork is often needed, and Federal copyright law allows an author-contractor to petition to terminate this assignment 35 years later.

35 years is fine for most purposes, but what if you are thinking on longer terms? Here, efforts to work around the 35-year copyright assignment termination issue should be considered. One option is to contract with a corporation that in turn “work for hire” employs the author.

Blurred lines: copyright AFC tests

Copyright AFC tests
Blurred lines

The “Blurred lines” music copyright case went wrong because courts are not using modern abstraction-filtration-comparison (AFC) infringement tests.

Copyright covers creative expression but not ideas or information.  Many copyrighted works, however, are a mixture of creative expression and ideas/information.  And what about fair use? This mixture gives courts headaches, and as a result, copyright litigation can be unpredictable.

For software copyright infringement cases, courts tend to use an “abstraction-filtration-comparison” (AFC) test. Copyright AFC tests were first introduced in the 1992 “Computer Associates v. Altai” case.  For this test, the court (i.e. the judge with expert help) first “abstracts” (analyzes) the work and determines what parts are “expression” (copyright protected) and what parts are ideas (copyright ineligible).  Then the court removes (filters out) the ineligible idea portions. If there are questions about what remains, the court can give the remaining “expression” portions to a jury to decide.

This test puts a lot of responsibility on the court to get things right and is hard to perform in practice, but at least it makes some sort of logical sense.  Throw out the ineligible stuff, and just look at the rest.

Copyright AFC tests were inspired by the earlier “Scènes à Faire” (Scenes a Faire) concept often used for literary and movie copyrights. As a quick example, if you want to write a Western novel or film, then horses, guns, salons, bandits and the like are considered essential ideas, and these would be tossed out in a copyright case involving a Western theme.

So what went wrong in the recent “Blurred Lines” music copyright infringement case? The song admittedly tried to capture the party atmosphere of Marvin Gaye’s earlier “Got to Give it Up” song, but the lyrics and music were quite different. Both had party noises and “cowbell”, but these were different party noises and different cowbells. In fact, Marvin Gaye’s copyright was for sheet music that didn’t cover party noises and cowbells at all.

The problem is that outside of software, older tests, such as “objective substantial similarity” and “total concept and feel” are still being used.  These older tests blur the distinction between creative expression and ideas and rely on an unskilled jury to magically sort things out.

To somewhat simplify the “Blurred Lines” case, the jury listened to music that contained a mixture of creative expression (different lyrics and music) and unprotected ideas (generic party noises and cowbell). To make matters worse, the jury instructions did not even tell the jury to try to distinguish between creative expression and copyright ineligible ideas.

So, not surprisingly, the jurors found infringement; most likely because both songs contained party noises and cowbell.  Never mind that these were not covered by copyright and that as far as the actual copyrightable lyrics and music went, the two songs were quite different.

This case is presently on appeal. Various copyright experts have suggested that the way out of this mess is to expand the use of the copyright AFC test from computer software to other types of copyright cases as well. Unfortunately, the law works slowly. Until then, go easy on the cowbell at parties.