American Copyright Research Articles

The Law and Economic Analysis on the Fourth Factor of the American Copyright Fair Use Doctrine: Based on the Assumption that the Copyright Originator and Its User Are in the Same Market

The Law and Economic Analysis on the Fourth Factor of the American Copyright Fair Use Doctrine: Based on the Assumption that the Copyright Originator and Its User Are in the Same Market

I Did You a Favor By Taking Your Work: Reconsidering the Harm-Based Approach To the Fourth Fair Use Factor

American copyright law is predominantly utilitarian. Fair use—codified to promote copyright’s utilitarian goals—has emerged as one of the most nebulous doctrines in American law. This is partially by design. Passing the Copyright Act of 1976 (the “Act”), Congress sought to endorse “the purpose and general scope of the judicial doctrine of fair use,” but made clear that “there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change.” This judicial deference—combined with the case-by-case nature of fair use determinations—has led to evolving and inconsistent applications of section 107.
 Interpretation of section 107(4), which instructs courts to consider “the effect of the use upon the potential market for or value of the copyrighted work,” is illustrative. Though a plain reading of section 107(4) leaves room for consideration of all market effects, most courts and commentators agree that the inquiry into this factor concerns only deleterious effects on the copyright owner’s actual or potential markets. Some have expressed hostility toward consideration of positive market effects on the ground that an infringing use that might improve sales of a copyrighted work is also likely to invade the market for derivative works.
 In limited circumstances, courts and commentators have recognized the relevance of an unauthorized use providing financial gain for a copyright holder. In Authors Guild, Inc. v. Google Inc., Judge Chin indicated that Google Books increased exposure and sales for the copyright holders, concluding that “the fourth factor weighs strongly in favor of a finding of fair use.” While the Second Circuit declined to adopt Judge Chin’s explicit reasoning, Authors Guild remains a powerful endorsement of the plain reading of section 107(4). In Google LLC v. Oracle Am., Inc., the Supreme Court indicated that analysis of the fourth factor should weigh public benefits against private harms, endorsing a more holistic balancing of interests. In the wake of a reinvigorated fourth factor, it is worth reassessing whether economic benefits from infringement have any place in the market impact inquiry.
 This Note addresses the current status of market benefits: monetary gains conferred upon a copyright holder by a third party’s unauthorized use of a copyrighted work. While courts are still unwilling to treat market benefits as dispositive, they are moving away from the view that the fourth factor concerns only market harm. Expanded analysis of a fourth factor now balances private economic effects, public benefits, and in some cases, non-monetary concerns related to the value of a work. Market benefit proponents assert that their inclusion is more in line with the text and history 1976 Act, as well as the overall goals of copyright. Further, weighing market benefits against market harms helps to address problems related to circularity.
 This Note considers the viability of market benefits as both a dispositive and a relevant component of fourth factor interpretation. Part I provides a basic overview of the traditional approach to the fourth factor before defining and distinguishing between different types of market benefits. Part II analyzes recent caselaw acknowledging market benefits and proposes a framework for proving market benefits as part of a reinvigorated fourth factor. Part III addresses the viability of market benefit arguments across different sectors of copyrighted works and the possible implications of increased acceptance. It concludes that, despite enhanced recognition, market benefits still lack widespread applicability and are unlikely to change the outcome of any present fair use determination.

The Motion-Picture Rights Contract: Legal Foundations and Trade Practices in the Studio Era

ABSTRACT: This article relates the piecemeal history of the motion-picture rights contract—a legal document that emerged following several high-profile court cases that clarified the distinct existence of film rights from other subsidiary rights, including dra matic or theatrical. By delving into negotiations surrounding several film rights contracts between best-selling author Edna Ferber and Warner Bros., I demonstrate the tenuous relationship between the American copyright system and the trade practices developed by lawyers and agents. Without clear guidance on subsidiary rights, motion-picture rights contracts were inherently flexible documents, capable of bending to favor whichever side could leverage the most power.

The Motion-Picture Rights Contract: Legal Foundations and Trade Practices in the Studio Era

ABSTRACT: This article relates the piecemeal history of the motion-picture rights contract—a legal document that emerged following several high-profile court cases that clarified the distinct existence of film rights from other subsidiary rights, including dra matic or theatrical. By delving into negotiations surrounding several film rights contracts between best-selling author Edna Ferber and Warner Bros., I demonstrate the tenuous relationship between the American copyright system and the trade practices developed by lawyers and agents. Without clear guidance on subsidiary rights, motion-picture rights contracts were inherently flexible documents, capable of bending to favor whichever side could leverage the most power.

Restricted access Book review: David Newhoff, Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright (Potomac Books, Dulles, VA 2020) 282 pp.

"Book review: David Newhoff, Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright (Potomac Books, Dulles, VA 2020) 282 pp." published on 31 Oct 2022 by Edward Elgar Publishing Ltd.

“To Save the Benefit of the Act of Parliamt”: Mapping an Early American Copyright

AbstractWhile the reach of Parliament was hotly contested in eighteenth-century America, there was one Act in particular that proved especially complicated for geographer Lewis Evans and his daughter, Amelia Evans Barry. Believing that English copyright law did not extend to Philadelphia in the 1750s, Lewis Evans drew on a variety of tools and circumstances to, in essence, craft his own interpretation of what benefits of copyright he and his family could obtain. Rather than formal copyright disputes involving legal documentation, this particular episode focused on other aspects of A General Map of the Middle British Colonies, In America. Inheriting the copyright to A General Map from her father, Amelia Evans Barry in turn sought to enforce and recreate a claim to literary labor over subsequent decades. The result was a unique story of copyright’s origins in America that also underscored the challenge of enforcing structures of power and perceptions of authority, particularly over geographic media, in the British empire. The boundaries of jurisdiction and sovereignty, the same ones depicted in A General Map, were that much more difficult to enforce when it came to intellectual property.

Video Game as an Object of Copyright in the Era of Digital Technology Development

This article is devoted to a video game as an object of copyright. The paper defines the concept of “video game”, highlights its features, summarizes approaches to determining the right mode of a video game. American literature and copyright legislation in relation to video games are also analyzed. In particular, the paper considers the experience of protecting the rights to an audio-visual work in the USA. Examples from judicial practice in such cases are also given. This made it possible not only to analyze the legal regime of regulation of multimedia objects, but also to raise the issue of some features of judicial review of such disputes. Noteworthy is the example of an independent allocation by the court of elements of a video game that are subject to judicial protection as objects of copyright. Particular attention is paid to the need to consolidate the work of representatives of the gaming industry and the legislator in terms of the normative definition of a “video game”, the objects of which it may consist and the possibility of their addition to existing ones, as well as determining the circle of authors of a multimedia work.

The 1891 International Copyright Act: Lobbying Behind the Scenes

The 1891 International Copyright Act: Lobbying Behind the Scenes

News aggregators and copyright in the European Union and the United States in the digital age: Evolution, comparisons, and implications

News aggregators have triggered copyright-related disputes between tech companies and news publishers. In the EU and the U.S., copyright systems have developed distinct characteristics. Because American tech companies stand to be hugely affected by the EU’s new copyright rules, some observers point out that the copyright war in Europe is fundamentally a collision between European and American copyright law systems. To respond to this observation, this study examines and compares European and U.S. perspectives on copyright and uses copyright as a lens to explore how digital platforms that aim at global influences provide the opportunity for different legal systems and legal traditions to converse and conflict. Through the comparison, this study argues that fundamental issues such as the nature of news are not effectively addressed in either system. While the EU and the U.S. present different regulatory trends in the case of copyright, a two-way shaping is at play.

Review: Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture, by Gary A. Rosen

Review: <i>Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture</i>, by Gary A. Rosen

Restating Copyright Law’s Originality Requirement

In 2015, the American Law Institute (ALI) launched a project to create a Restatement of the Law, Copyright. Concern, objection, and disagreement about the ALI’s Restatement projects is not new, but the Restatement of Copyright project seems to be particularly controversial among industries dependent on copyright protection. The drafting group has now worked through several versions of some proposed sections; a handful of these have been approved by the ALI Council and are ready to go before the ALI general membership. So now is a good time for close analysis of the chunks of the projects that have crystallized.&#x0D; This Article reviews the 2020 draft Restatement’s presentation of American copyright law’s threshold requirement for protection: that copyright protects only “original works of authorship,” and how that “originality” requirement should be understood in light of the Supreme Court’s 1991 decision in Feist v. Rural Telephone. Copyright’s originality requirement is a challenging subject for a Restatement because what is unquestionably agreed is that black letter law is limited, formulaic, and opaque. Not surprisingly, the Restatement’s handling of this topic hews close to the words of the Supreme Court’s modern pronouncement on the issue, sometimes to the detriment of a richer, potentially more enlightening discussion.&#x0D; The discussion here is based principally on “Tentative Draft No. 1” of the Restatement, released on April 8, 2020,3 but the discussion will also include consideration of the earlier “Council Drafts”4 that led to the 2020 proposal.&#x0D; Part I of the Article briefly describes the controversial beginnings of this Restatement project—and, as of 2021, the continuing animosity of copyright stakeholders to the project. Part II lays out the 2020 draft Restatement’s core provisions on copyright originality, the modest evolution of these provisions since the 2017 draft, and some concerns with what these sections, Comments, and Reporters’ Notes say. In broad strokes, the draft Restatement’s take on copyright originality is faithful to the Supreme Court’s 1991 Feist v. Rural Telephone decision, perhaps too much so. Part II.A explores the draft Restatement’s presentation of Feist’s “modicum of creativity” requirement, raising some issues both with what the Reporters have said so far and equally with what the draft Restatement seems unwilling to say about minimal creativity. Part II.B discusses the draft Restatement’s presentation of Feist’s “independent creation” requirement; here the concern is that the draft may conflate independent creation with minimal creativity in a way that does not contribute to coherence in copyright law.

ОБМЕЖЕННЯ МАЙНОВИХ АВТОРСЬКИХ ПРАВ В УКРАЇНІ І США: ПОРІВНЯЛЬНО-ПРАВОВИЙ АСПЕКТ

The article compares the American copyright system (from its inception, borrowing the basics of the English system to the establishment of the principle of "fair use") and the Ukrainian system, which provides a specific list of cases allowed as a restriction of copyright (enumerated system) by establishing in national legal acts of the three-stage test provided by the Berne Convention. The article examines not only the legislation of Ukraine and the United States in this area, such as: the Federal Copyright Act of 1790, the second Federal Copyright Act of 1909, the Copyright Act of 1976, the Civil Code of Ukraine, the Law of Ukraine "On Copyright law and related rights" but also the case law of the United States, which is a key element in regulating disputes in the area under discussion. The author analyzes a number of cases through the prism of changing approaches in the US system of property rights restrictions, namely Philpot v. Media Research Center Inc. No. 1: 17-cv-822 dated January 8, 2018; Peteski Productions, Inc. v. Leah Rothman No. 5: 17-CV-00122 dated August 30, 2017; Rosen v. eBay, Inc., No. 2: 13-cv-06801-MWF-E of 16 January 2015 and Corbello v. DeVito No. 2: 08-cv-00867-RCJ-PAL June 14, 2017. As a result of the research, the author determines that the national legislation establishes an exhaustive list of works that are its objects, at the same time, the ways of using the work depend on the type of particular work. Therefore, an exhaustive list of all possible ways to use the works is not provided. U.S. law provides for an exhaustive list of copyrighted works and an exhaustive list of ways to use such works. And the doctrine of "fair use" in the United States provides that in determining whether the use of work in any particular case is fair, there are at least 4 factors to consider. Keywords: the principle of "enumerated system", the system of "numerus clausus", the concept of "exceptions and limitations", US copyright law, the doctrine of fair use, the Agreement on guidelines for copying in non-profit educational institutions, free use of works, three-stage test.

Uslovi za zaštitu autorskog dela u pravu Sjedinjenih Američkih Država

This paper analyzes various conditions that one spiritual creation must provide in order to be considered an author's work, according to the law of the United States of America. Apart from the peculiarities that are the result of the Anglo-Saxon concept of copyright, there are other specifics such as the special, constitutionally provided, purpose of copyright in promoting learning, preserving the public domain and protecting copyright. Based on the provisions of the Federal Copyright Act (17 U.S.C.) and examples from the case law, the author explains how the originality of a work is interpreted, how the condition that the work must embody in a materialized medium is regulated and what are the typical types of copyrighted works. In addition, the author explains the main differences when it comes to American Copyright system and how the concept of registration is viewed, after the ratification of the Bern Convention, which is one of the most common causes of the problem of protection of works whose right holders are unknown, which is extremely notable when speaking of the protection of cultural heritage of marginalized groups in American society. The paper aims to point out the similarities and differences between the copyright of the USA and the law of the continental legal system in terms of the conditions for the protection of copyright works.

Copyright Fair Use from 1841 to 2021: What It Means For Copyright Protections Versus Free Speech Exceptions

This article, published in the May/June 2021 edition of The Federal Lawyer, examines the jurisprudential and legislative history of copyright fair use in relation to its current status in American copyright law as an defense. Fair use as an affirmative defense is relatively ingrained into modern U.S. copyright law, even though the Copyright Act does not use this label. Because fair use is treated as an affirmative defense, defendants wholly bear the burdens of production and persuasion on all four fair-use factors articulated in Section 107 of the Copyright Act. However, this full allocation to the defendant may reflect an imbalance between the rights of copyright holders and the rights of the public. These considerations are especially evident when it comes to summary judgment, which already places the onus on the defendant to eliminate issues of fact, and when it comes to the market harm factor, which requires the defendant to prove the absence of harm to markets that not it, but the plaintiff, owns. The Copyright Act's lack of specificity as to the procedural posture of fair use could support a currently untapped judicial flexibility when it comes to approaching fair use from this standpoint. As this article concludes, a procedural approach that takes into account the parties' relative access to evidence and information could bring copyright protection and copyright exception into better balance, furthering the goal of copyright law to foster creativity.

Restating Copyright Law's Originality Requirement

In 2015, the American Law Institute (ALI) launched an effort to develop a Restatement of Copyright Law, a project still mired in controversy both because of the statutory nature of copyright law and the deep, abiding ideological disagreements about copyright policy. The ALI drafting group had worked through several versions of some sections of the draft Restatement by late 2020; a handful of these have been approved by the ALI Council and are ready to go before the ALI general membership. So now is a good time for close analysis of the chunks of the project that have crystallized. This Article reviews the 2020 draft Restatement’s presentation of the threshold requirement for copyright protection in the United States: that copyright protects only works that embody “originality.” In broad strokes, the draft Restatement’s take on copyright originality is faithful to the Supreme Court’s 1991 Feist v. Rural Telephone decision, perhaps too much so. Missing in the draft Restatement is the Court’s richer discussion of the originality threshold being that of an “intellectual” creation as well as the role of personality and human judgment in establishing originality. The Article also discusses some doctrinal missteps that the draft Restatement makes; if uncorrected, these mistakes will leave us with a Restatement that is a partial misstatement of American copyright law. This Article is part of a symposium issue of the Columbia Journal of Law and the Arts.

Pornografía no consentida: alternativas en el ordenamiento jurídico de la propiedad intelectual de Estados Unidos

Non-consensual pornography is an act of violence that undermines the dignity, reputation and honor of people. This research presents some of the existing legal alternatives to face these acts of violence with intellectual property law, specifically with copyright. This research is based on the legal system of the United States of America, the United States Copyright Law of 1976, the Electronic Non-Theft Act of 1997, The Communication Decency Law of 1996, The Electronic Communications Privacy Act of 1986, the Digital Millennium Copyright Act of 1998 and the exceptions and clarifications presented by the jurisprudence. The investigation concludes that there are alternatives available to victims of these acts of non-consensual pornography. However, to make North American copyright remedies accessible to victims, it is recommended to amend some of the current Acts analyzed.

The author's arsenal: loosening standards for protectability and substantial similarity in video game copyright

This article examines and critiques the American copyright regime's increasingly protective approach to video games and their subject matter. Over the past decade, a trio of district court decisions have bolstered protection for video games by relaxing standards for protectability and substantial similarity. Subsequent rulings, concerning both games and other forms of intellectual property, suggest this protective streak will continue. While heightened protection might provide a necessary deterrent to ‘cloning’ and other kinds of impermissible copying, it will also endanger valuable forms of appropriation. After decades of limited copyright involvement, mimesis has become an important element of game creation – widely tolerated by the gaming community as a source of inspiration, interoperability, and cultural conversation. A more expansive view of protectability may inhibit imitative behavior that has, in the past, benefited new creators and fans without harming the economic expectations of prior authors. Moreover, that new approach, which relies heavily on juries for unpredictable, case-by-case determinations, may restrict the financial and creative outlook of the video game industry at large. In its first section, this article identifies the elements of video games that have been deemed protectable under copyright law. The second section summarizes foundational video game case law, in which courts established restrictive standards for protectability and substantial similarity. The third then discusses the paradigm shift towards more expansive protectability, recounting cases where courts found games worthy of heightened protection. In its fourth section, this article argues that the protective trend has yet to peak, looking to evidence gleaned from recent copyright suits. A concluding section outlines the risks of overprotection, cautioning against a potentially unreasoned and impractical copyright standard.

Actors as Authors in American Copyright Law

Among the different kinds of works eligible for copyright, audiovisual works are arguably the most complex, often involving scores of contributors – screenwriters, directors, actors, cinematographers, producers, set designers, costume designers, lighting technicians, etc. Some countries expressly recognize which categories of these contributors are entitled to legal protection, whether copyright, ‘neighboring rights,’ or statutory remuneration. But American copyright law does not. Given that the complex relationship among these creative contributors is usually governed by contract, there is – for such a large economic sector – relatively little case law on issues of authorship in audiovisual works. This is especially true on the question of dramatic performers as authors of audiovisual works. This Article provides the first in-depth exploration of whether, when, and how actors are authors under American copyright law. After describing how case law, government views, and scholarly commentary support the conclusion that actors are authors, the Article turns to the strange saga of the Ninth Circuit’s 2015 en banc Garcia v. Google decision – a decision more about fraud and fatwas than clear conclusions on how copyright law applies to acting. The Article then uses some simple thought experiments to establish how dramatic performers generally meet both the Constitutional and statutory standard for “authorship.” Finally, the Article reviews the various filters that prevent actors-as-authors legal struggles and how, when all else fails, we can consider actors as joint authors of the audiovisual works embodying their dramatic performances.

Hiding Actualities: Whether Art Should Exist Independent of the Artist

Recent advancements in technology have made nearly every aspect of celebrities lives are available to the public, causing many of their secrets to rise to the surface. This Note explores recent allegations of various artists, how the public has reacted, and the implications that arose. Further, this Note suggests that, under the American copyright system, it may be acceptable to disconnect the art from the artist in certain situations. Precedents in tax law, criminal law, and property law support this separation. If the music perpetuates or is influenced by the artist's bad behavior, then it should be protested. However, if the music in itself is not problematic, the music should exist independently.

The 'I Know It When I Hear It' Test: Decreasing Overdependence on Sheet Music in Substantial Similarity Cases

Courts examine music the wrong way in substantial similarity cases. Both British and American copyright law ask the same question: How much change exists between two contested works? If the court says that the amount of difference between or change from one work to another is “enough,” then Work B might infringe on Work A. However, many courts over-rely on sheet music to determine how different two pieces of music are — which misses the point of music and ignores the fact of the subjective musical experience. Therefore, instead of focusing on sheet music when adjudicating music copyright cases, courts should place greater emphasis on sounds. American courts can modify the procedure surrounding the Krofft substantial similarity test to increase their reliance on sounds. This modified procedure requires the jury to listen to the contested pieces before hearing any expert testimony. It also requires courts to utilize the much-debated Lay Listener Test rather than using a jury of trained musicians and to limit the role of expert players — those who play their music in the courtroom during the proceedings. Additionally, Congress should require sheet music deposit copies that seek to represent sound recordings to fully and completely transcribe all the sounds in those recordings. This Article combines elements that others have proposed in a unique way, as well as offering new procedural ideas. Additionally, this Article links a British case about Baroque music with an American case about classic rock, connecting United States and British copyright law. This Article also advocates leaning into the subjective nature of the individual’s musical experience while treating music equally under the law as other types of cases, such as medical malpractice or products liability.