The joy of being a copyright specialist is the amazing array of cool, beautiful, and profound things that make up the raw material of what we do. It is a privilege to be granted even a tiny window into the creativity of the many people we get to work with. And even the cases we only read about share in this astonishing diversity.
But let’s be honest. There is also a lot of nonsense in the copyright world. The idea of “owning” creative expression just makes some folks go a little nuts, and some pretty absurd claims get made about copyright (monkey selfies, anyone?). So here is a quick review of some recent bizarre cases, although by the end of it we will have the opportunity to review some important principles about copyright law.
Perhaps a good place to begin is with the claim by descendants of Nazi Propaganda Minister Joesph Goebbels that they are entitled to licensing fees for quotes from Goebbels’ diaries that are used in a new biography of him. One of the strangest things about this case is that it may well be a valid claim, although there is some dispute over who actually is the copyright holder, since most assets of the Nazi leaders were seized by the Allies after the war. But the very fact that it is being raised suggests some interesting questions. How much money would make it worthwhile to publicly identify oneself as a descendant of one of the worlds most vilified war criminals, an architect of the “final solution?” And will there be a fair use/fair dealing defense raised, as the blog Techdirt has suggested? It certainly seems like we should avoid a situation where a war criminal’s family would be in a position to censor a biography of him, which would be one possibility if they were found to hold copyright. Random House seems mostly to assert the “no money to a war criminal” defense against the claim, but it is worth remembering that copyright is not only about money, it is about control.
Just before publishing this post I saw an excellent analysis of the issue of royalties for ex-Nazi’s or these descendants here, in Inside Higher Ed.
Another development this past week was the filing by John Deere in regard to a proposed exception to DMCA anti-circumvention rules in which they claimed that the software in a tractor is only licensed to a consumer, not owned by them. It was inevitable that such a claim would be made eventually, and I predicted it somewhat eerily in this post from last year (substituting John Deere for Ford). John Deere wants to sell you a tractor, and they are fine with you using it as you wish, unless you decide to modify the software. At that point they assert that you, the purchasers, only have an implied license to use the software and that anti-circumvention rules would prevent modification, and should continue to do so. What makes this claim more dangerous than absurd is that it raises the idea of new limitations on what we mean by ownership. We thought that the doctrine of First Sale was sufficient to protect the traditional idea of ownership in regard to copyrighted material, but the DMCA, and the desire of some companies to suppress competition, has changed that. What new and un-imagined restrictions on my use of the tractor in my driveway might be down the line from John Deere? We are getting ever closer to the point where our courts will need to develop clear guidelines about what it means to own a machine that incorporates copyrighted material. In the meantime, I would think twice before I “bought” a John Deere tractor; I like to know what I am getting for my money, and John Deere seems to think they can upend my reasonable expectations whenever it suits them.
Most readers are likely already familiar with the next of the follies I want to discuss: the claim made on behalf of the bystander who filmed the police shooting of Walter Scott in South Carolina that he, the bystander, is entitled to a licensing fee — apparently as much as $10,000 — every time the media replays the video. There are two especially troubling aspects of this claim. The first is the absurd misunderstanding that leads to a statement that the fair use “period” has “expired” for this video. There is not a time limit on fair use, of course. It seems to me that a few people are confusing fair use, a statutory boundary on copyright that lasts as long as the rights do, with the so-called “hot news” doctrine. The latter was the creation of courts, is of uncertain application, and was largely preempted by the 1976 copyright act. In fact, the hot news doctrine was a limit on the exclusivity that a news organization could have over its report of newsworthy events, so the doctrine acted in the reverse of how it is being asserted, under the wrong name, in the Scott shooting video case. Fair use continues to exist in spite of the lapse of time, and only a very poorly-advised news organization would accept this idiotic argument.
Which brings me to the most troubling aspect of this case, the apparent fact that the New York Times agrees that fair use can expire. According to the Forbes report linked above, the NYT claimed that “copyright experts” agreed that this alleged fair use period has passed. They quote a lawyer for the Copyright Clearance Center (hardly a disinterested party) whose argument, while using temporal language, can only sensibly refer to the specific conditions surrounding a particular use (i.e. whether the use is for the purpose of news reporting or not). I wonder if the CCC can cite any case law for this proposition that fair use can expire? If not, then they and the NY Times are just spreading FUD which, at least for the Times, is unexpected and reprehensible.
Finally, I want to briefly comment on this story about a former researcher who is suing his former post-doctoral adviser at Brown University for having published an article that they apparently wrote together without giving authorship credit to the former post-doc. There are complicated details to the case, and I would not like to offer an opinion about who is right or wrong in the overall dispute. But the controversy raises one issue that I do want to comment on: the situation between joint authors. So much of the scholarship produced today is written by multiple authors — I recently saw an article with 102 listed authors — that it is increasingly important to understand a couple of points.
First, to qualify as a joint author in the copyright sense, each author must contribute protectable expression to the preparation of the overall work. That means that some, at least, of those 102 authors are not co-owners of the copyright because their contributions did not involve the creation of protectable expression. We don’t worry too much about this distinction in the academic world, but it could be an issue if a dispute over publication arises, as it has in the Brown University case described above.
Second, it is important to understand that each co-owner of the copyright, each joint author, is entitled to exercise the rights in the copyright bundle independently. That means that one author can conceivably authorize publication without the permission of the other authors, as seems to have happened in this situation. On the copyright issue, at least, it seems clear that the post-doc cannot object to publication simply because the article he worked on with others was published by one of them without his knowledge or consent. The author who published would be obligated to account to all co-authors for any profits from the publication, but it would not be infringement to simply publish the article without consent from the others.
This precise situation, also involving a dispute about how authors were listed, was considered by the Seventh Circuit Court of Appeals in 1987 in a case called Weinstein v. the University of Illinois, and the panel of judges, two of whom were themselves well-known academics, came to the same conclusion — no infringement when one co-owner of the copyright publishes without permission from the others. So whatever the other details are in the Brown case, a copyright claim against the former adviser from one of his co-authors is unlikely to be successful. This is why it is so important (especially in cases like this involving commercial sponsorship) for all of the authors to agree together about the use and publication of any intellectual property that arises from the project. That sort of agreement, worked out calmly and in advance of any conflict, is still the best way to avoid being involved in any copyright follies.