Appiness is a Truth!

I normally reserve this space to talk about copyright cases that affect authors, but since Congress defines computer software as a “literary work,” I’m feeling free to pass this along . . .

What are courts supposed to do when Congress doesn’t understand the logic of its own statutes?  Decades ago Congress made the decision to protect computer software under copyright law, something the public has gotten used to over years, and to the extent we want to stop the piracy and counterfeiting of our favorite programs it seems unproblematic.  Unfortunately, there’s a messy side to the issue that’s just been raised in a petition filed before the Supreme Court appealing a very controversial decision by the influential Federal Circuit Court of Appeals.

A good starting point for understanding the case is recognizing that software is actually a kind of machine, a totally functional work that is, counter-intuitively, defined as a “literary work” in the copyright statute.  Think of the app on your phone that lets it be used as calculator.  Normally, we would think of a calculator as the sort of work that would be protected exclusively under patent law [we all think of it as a type of machine], so why protect the software that turns your phone into a calculator under anything other than patent law? Isn’t it a virtual machine.  If you think hard enough about the analogy, you won’t be surprised to learn that the Patent Office does protect innovative software as a category of machine.  This is why outside the blatant counterfeiting context, most law professors believe that software should be governed solely by patent law with its rigorous requirements for protection.

Think about it:  A new aerodynamic car design, no matter how attractive to the eye, is currently only protectable under patent law.  It must be new, useful, and, most importantly, a non-obvious [read:  “significant”] advance over prior car designs.  If it qualifies, it will receive protection for 20 years.  One cannot use copyright law, with its longer term of life-of-the-author plus 70 years and lack of significant qualitative requirements to shut down competitors.  Before Congress situated computer software into the copyright act, Judges were able to draw pretty clear lines between aesthetic creations covered by copyright and functional products covered by patent.

This brings us to the case that I referenced earlier, Oracle v. Google, which raises the issue of whether Oracle can use copyright law to maintain exclusive rights in its Application Programming Interfaces [its “API’s”].  API’s are parts of software that specify component requirements, in other words what another programmer needs to know about the software in order to write a compatible program.  For example, if I want to write an app for your phone that lets you donate easily to WILL Radio in Champaign, I need access to the API that describes the input and output requirements of your phone’s existing software.  Well, the Federal Circuit (normally a specialized patent court) has held recently that Oracle’s API’s are protected by copyright law, threatening the ability of programmers around the country to be able to write compatible new apps without obtaining expensive licenses.  This could be a game changer in the industry that would eventually raise prices to consumers and diminish our access to creative new apps.

There is no claim that the Oracle API is worthy of a patent (in fact, it’s quite boring), but because of Congress’s jamming the square peg of computer software into the round whole of copyright, the Supreme Court may soon have to sort out this mess and hopefully explain why programmers should remain free to compete with each other in app market.


A Chilling New Suit!

Disney, producers of the hit movie “Frozen,” have been hit with a $250 million lawsuit alleging that the film infringes the autobiography of Isabella Tanikumi, or at least that’s the way E! news characterizes the suit.  The report claims that Tanikumi is complaining about the theft of her life story, which would be a bit odd, given that no one owns his or her own life story.  Any of us authors can write a book or make a movie based on the life of another person without his or her permission.  No authorization is needed, and nor should it be, or famous politicians and celebrities would gain control over what the public can learn about them.  Moreover, copyright law makes clear that we can extract the facts of someone’s life story from the celebrity’s own autobiography. However, a close look at the Tanikumi complaint shows no claim of “life story theft,” but rather a straight-up copyright claim, probably because her book, “Yearnings of the Heart,” is described on Amazon as a novel and not just an autobiography.

The most interesting part of the lawsuit is the backlash from Disney supporters. Before the lawsuit was filed, the book had been reviewed twice and given 5 stars both times. In the two weeks since the suit was filed on September 22, the book has been reviewed scathingly 49 more times and the average rating has plummeted to 1.5 stars.  Ouch! Don’t mess with Disney!

I must take Ms. Tanikumi to task for thing, however.  The movie has not damaged her pocketbook to the tune of $250 million. In fact, she has probably sold more copies of her work because of Disney.  Her recovery, if any, would be limited to the amount customarily paid to an author for the right to use a story.  I wish very much that was $250 million, but unfortunately we do not get paid nearly so much.  Hopefully her next book will demonstrate as much imagination as her lawyer does in the complaint!

Why A New Authors Alliance?

As a founding member of a new organization, the Authors Alliance, I feel compelled to explain why I urge authors to join AA (oh dear, that’s an unfortunate acronym, especially given the historical linkage between writers and alcohol. . .) rather than the established Authors Guild. Why?  Because the Authors Alliance advocates for an author-centered copyright law.  A quick example:  AA authors want to be found and to be read, so we support the federal court decisions that bless the Google book project under fair use principles.  We want Google to be able to make snippets of our works available so that readers can find us!  The Authors Guild is the sole remaining organization fighting the Google books project.  Moreover, I can see another important conflict in the future.  Most authors realize that we are constantly building on works created in the past.  The Authors Alliance is therefore very likely to oppose any further extensions to the term of copyright.  We are constantly mining the public domain, but no works have fallen into the public domain in the United States since 1998!  This precious resource is currently frozen, held hostage by Disney and friends.  The Authors Guild will almost surely follow the lead of publishers and support further term extensions.  Any group with the interest of both authors and the public at heart will fight a further extension of the copyright term.

Two examples of the evils of term extension will suffice.  First, freezing the public domain and maintaining the copyright status for most works published after 1923 has keep thousands of books off of the shelves of, out of sight and unavailable tot he public.  You can see graphic proof of this in recent research summarized beautiful by Rebecca Rosen of the Atlantic Monthly entitled “How Copyright Made Mid-Century Works Vanish.”  Second, authors who would like build on works that should be falling into the public domain have seen their creative efforts stymied.  Wouldn’t you like to hear my musical version of the Great Gatsby? (well, maybe not the best example).

You get a better idea after a brief perusal of the Authors Alliance web site which states boldly:  “We have formed an Authors Alliance to represent authors who create to be read, to be seen, and to be heard. We believe that these authors have not been well served by misguided efforts to strengthen copyright. These efforts have failed to provide meaningful financial returns to most authors, while instead unacceptably compromising the preservation of our own intellectual legacies and our ability to tap our collective cultural heritage.”

More to come in future posts on these innovative efforts to put the public interest back into copyright law.

An “Effing”Good Decision in New York

The Second Circuit Court of Appeals has just reminded us of the power of the fact/expression distinction in copyright law, a distinction that benefits all authors trolling for inspiration.  In Effie Film, LLC v. Murphy, the New York based court examined the claim that a proposed Emma Thompson film about the marriage of Effie Gray and John Ruskin would infringe a screenplay covering the same subject matter.  The issue was not whether the film company had read the Murphy screenplay or even whether it was consulted as a resource.  The question was whether the film would appropriate Murphy’s own protected expression.  Since facts are utterly unprotected by copyright law, any filmmaker or author can feel free to consult any source whatsoever in the search for facts to portray in a new work.  As long as the Thompson film only takes historical facts from the Murphy screenplay, then no infringement will occur.  Appropriating made-up dialogue, on the other hand would be problematic.  It is nice to hear a court emphatically remind us that no one owns facts, and if two works resemble each other only because they have a lot of facts in common, there is still no infringement.

This case reminds me of the older case of Universal Studios v. Miller, where a film about a sensational kidnapping was based on an earlier written book.  When negotiations with the book’s author broke down, Universal made the film anyway.  In its opinion, later cited by the Supreme Court in the famous Feist case, the Fifth Circuit explained that taking relevant facts without permission was fair game.

Ex-Spouses and the Termination Right (Copyright, that is!)

Did you know that authors have an inalienable right to get back their copyrights 35 years after a transfer?  In other words, this year should see Stephen King regain his copyright to The Dead Zone and the estate of William Styron get back Sophie’s Choice.  Just by asking!  Under the termination right of 17 U.S.C. 203, an author may terminate any transfer of a copyright 35 years after the transfer was made. Although many interesting issues revolve around the termination right, one of the juiciest involves whether the termination right constitutes marital property in divorce proceedings.  Smokey Robinson’s ex-wife (they divorced in 1986) thinks so and has filed suit to obtain a portion of any proceeds stemming from copyrights that Smokey regains via the termination right.

Oddly, whether Smokey’s ex- is entitled to any share of the copyrights turns on state marital property law.  Nothing in the Copyright Act provides a clear answer.  By analogy to real property law, however, spouses may have a fairly good argument that they are entitled to a share of newly regained copyrights.  Imagine that Leslie’s father is granted a life estate in Blackacre and Leslie is granted a “remainder” in Blackacre (the right to Blackacre once his father dies).  Since Leslie’s future interest in Blackacre vests at the time of the grant, any marital interest in Blackacre also vests at the time of the grant.  In some states, that vested future interest becomes part of the marital estate subject to the claims of Leslie’s spouse at the time of the grant.  If a state treats the termination right as a vested future indefeasible interest, then it’s likely that the state would find it to be marital property.  The termination right vests at the time of the creation of the copyrighted work, even though the right cannot be exercised for 35 years.  If married at the time of creation, Leslie may find his future interest encumbered by a spousal claim.

We should all live long enough to exercise our termination rights and have such problems!

Ninth Circuit Screws Up Copyright Law to Save a Fatwa-Endangered Plaintiff



In an attempt to save a life, the Ninth Circuit has radically changed copyright law. An actress, Cindy Lee Garcia, was tricked by a director into appearing in an anti-Islam movie called the “Innocence of Muslims.”  Thinking she was auditioning for a thriller entitled “Desert Warrior, Ms. Garcia found her dialogue overdubbed, making it appear she was uttering offensive lines like, “Is your Mohammed a child molester?” An Egyptian cleric issued a fatwa ordering the killing of all involved in making the film and she began receiving death threats.  She sued seeking an injunction that would force YouTube to take down the uploaded movie.  While she may well have several causes of action against the director (breach of contract and fraudulent misrepresentation come to mind), none of the facts recited above should have any relevance in her copyright infringement suit against Google/YouTube.

Her copyright claim is based on the assertion that her performance is protected by copyright and that she is the sole owner of it.  Until the Ninth Circuit opinion, however, courts had always required that a copyrighted work be “fixed in a tangible means of expression” in order to receive protection.  To be sure, a movie performance is “fixed,” but it’s long settled that the author of a visual fixation is the photographer or videographer, NOT the subject of the fixed image.  In other words, Marilyn Monroe is not the owner of the famous picture depicting her skirt billowing upward over a heating grate.  The photographer is.  Sometimes the subjects of images have privacy rights or publicity rights, but until the Ninth Circuit opinion in Garcia v. Google, no court had ever held that the subject of an image in entitled to a copyright.

Could an actor ever establish a copyright in an image or series of images?  Sure, but not by just acting!  Think of Sylvester Stallone in Rocky.  He wrote the script to the movie (a clear fixation) and he directed the photography (another fixation).  These contributions, not his acting, qualify him as a copyright holder.  Previous courts considering the claims of actors have always required the actor to have significant input into the script or control over the filming in order to qualify for protection.  Garcia alleged neither.

Although Hollywood will effectively use contracts to prevent other actors from leaping onto the Garcia bandwagon, the case will surely wreck all sorts of havoc in other corners of copyright law . . . stay tuned here for the fallout.

Sherlock Holmes Bullies Defeated!

All but the final 10 of Arthur Conan Doyle’s Sherlock Holmes stories were published in the U.S. before 1923 and are now in the public domain, but this has not stopped his estate from trying to extract licensing fees from those who wish to create new tales or movies starring the pipe-smoking ur-detective. So, writer Leslie Klinger brought a declaratory judgment action in federal court to obtain the assurance his publisher needed that an anthology of new Holmes stories would be perfectly legal. Just before Christmas, the federal court for the Northern District of Illinois ruled in his favor. The judge explained that all pre-1923 elements of the Holmes character were unprotected, but any new character traits developed in the final 10 stories would still be protected by copyright. I don’t remember any new twists, but if the last installment of Conan Doyle’s work revealed that Holmes was really an elderly woman from Yorkshire, perhaps that bit of ground might be off-limits.

Authors Guild on Wrong Track with Appeal of Google Books Ruling

Several weeks ago, the Author’s Guild today filed an appeal of a fair use decision so sensible and important that even the publishing community has acquiesced to the district court’s analysis. Judge Chin’s November opinion found that Google’s scanning of copyrighted books was permissible so long as Google only made brief snippets of the books available to those searching the massive Google Books library.  Not surprisingly, he found that making books findable and searchable in an online repository was likely to increase book sales, as long as entire books could not be downloaded for free by users.  As an author who frequently invokes the fair use doctrine to justify my creative decisions, I find it difficult to understand why the Authors Guild has decided to challenge Judge Chin’s ruling.  I certainly want consumers using Google books to find my novels! And as a copyright scholar, I can do nothing but praise the court’s careful analysis of the 4-factor fair use test.  In third grade, we were all taught that copying is wrong, but as we mature, we come to understand that some copying is good . . . well, at least most of us . . .