Jocelyn's Other Desk

The writings of Jocelyn Smith, aspiring author, soon-to-be lawyer, once and future politician, all-around opinionated twentysomething.

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Location: Orlando, Florida, United States

I'm a lawyer in Florida, working on three novels, a screenplay, and half a dozen pieces of fanfiction at any given moment.

Tuesday, June 21, 2005

Copyright and Free Speech, Part II

Once again, Nimmer on Copyright is my principal source. Anybody who's interested in this stuff really should find their nearest law library and read this treatise. It's just so darn good.

And I am just such a darn geek.

Anyway, class, today, Nimmer and I are exploring the interests and purposes of copyright doctrine and free speech doctrine.

  • To grant to individual artists, authors, etc. a legal protection of their work.
  • To derive a public benefit from the creative activities of said authors/artists by allowing them a limited monopoly over the economic/personal benefit of their works.
  • A privacy interest/moral right, that authors/artists who create a work purely as a form of self-expression may intend a work for themselves alone or a limited group of viewers/readers--the right to "first publication" of the work.

Free Speech

  • A necessary component of a self-governing society
  • Free speech is a goal of itself because it is "the nature of man" to achieve fulfillment by the freedom to express his ideas/thoughts
  • There are hazards in discouraging hope, thought, imagination, and safety lies in the opportunity to discuss ideas and feelings (ie grievances with the government) freely.

Both free speech and copyright, in some form or another, tend to revolve around the promotion of a "marketplace of ideas," which involves an interest in putting as many ideas and expressions into the open for public viewing and discussion as possible for the general benefit and growth of society.

Copyright does this by giving authors/artists an "incentive" to create (by promising them the right to certain benefits of their work granted to them alone), and Free Speech does this by giving individuals the "freedom" to put out any idea/message they wish without fear of retaliation by the government.

"Idea" versus "Expression"

Copyright Law purports to protect only the "expression" of ideas, not the ideas themselves. Of course, this is easier said than explained. What's the difference?

As Professor Zechariah Chafee put it, "the line does lie somewhere between the author's idea and the precise form in which he wrote it down. I like to say that the protection covers the "pattern" of the work."

For example: a book is an expression. A book called Harry Potter about a little boy who discovers he's a wizard and goes off to wizard school and has to fight evil wizards while growing up is an expression of an author's ideas. Harry Potter books and movies can be copyrighted.

But that doesn't prevent another person from writing and publishing a book about a little boy wizard, or a little girl witch, or kids at magic school. There are lots of books for children out there about witches and wizards. So long as you do not too closely copy the previous author's "pattern" of expression (the precise forms, descriptions, names, unique aspects of the copyrighted work) you are free to use ideas.

The First Case: Harper & Row Publishers, Inc. v. Nation Enterprises (1985)

  • Nation Magazine reprinted, without authority, 300 words from the published and copyrighted memoirs of former President Gerald Ford. When the publisher of the memoirs sued them for infringement, they raised a First Amendment defense.
  • The Court agreed that the balance between the First Amendment and Copyright Law permits "free communication of facts while still protecting an author's expression."
  • But Nation had gone beyond that and copied 300 words in a direct quote from the copyrighted expression. (Ie, instead of saying "President Ford fell off the steps of Air Force One," they copied Ford's memoirs that said, "I was just waving to my adoring public and the next thing I knew, I was taking a header onto the runway!" [not a quote from the case.])
  • Result? Nation had infringed on the copyright.

To be continued...


Blogger The Other People said...

First Comment. The attorney from Scrivener's Edge put up a statement under 'what's stupid about it' at LG's blog which closely mirrors something Claire said either here or on her blog - about tacit approval. I don't think Claire's an attorney. Won't admit to it anyway. But I find his argument interesting. He's been at it a lot of years Jocelyn. You're still a student, you might want to take a look at it.

11:20 AM  
Blogger Jocelyn Smith said...

Which is the attorney from Scrivener's Edge? Is that CEP? Was this today? I'll be sure to go have a look at it.

I keep meaning to post a link to Scrivener's Edge here on the blog and start reading their material more closely, but always forget.

11:41 AM  
Blogger The Other People said...

Yes, CEP.

11:46 AM  
Blogger Jocelyn Smith said...

Ah, yes, CEP. He's almost as long-winded as I am.

But I'm not seeing in that particular statement that really implicates the First Amendment issues in these posts.

The question of author approval is certainly relevant to copyright as a whole, without doubt, as far as implied and actual licenses and assignments go.

But what I'm doing with this little series is just bringing up for debate the collision of the Copyright Act and the First Amendment--not confined to fanfiction, although the issue wil certainly come up.

For example: as far as tacit approval goes, a First Amendment absolutist would argue (as Nation Magazine did) that in ANY case, whether it's fanfiction or quoting from a book without paying for the license to use or borrowing from a source without citing, First Amendment protects that right.

(For the record, I don't agree with the above in all cases, or even most cases. But I'll get to that. Gotta actually research stuff for work in here too!)


However, I think CEP was talking from a strictly copyright perspective, without taking First Amendment issues into account--which is fine.

12:03 PM  
Blogger Claire said...

I don't think Claire's an attorney. Won't admit to it anyway.

I'm not an attorney. Wouldn't admit to it, if I were. Also, that congressman comment on my blog, Jocelyn, is not meant in the context you took it.

Now everything is cleared up.

Jocelyn, you saying there's going to be a showdown between Copyright and the First Amendment?

12:45 PM  
Blogger Jocelyn Smith said...

Also, that congressman comment on my blog, Jocelyn, is not meant in the context you took it.

Ah, too bad. I was about to email you and ask who. I've met most of the Congress members in the South, having worked once for a member of Ways & Means. (Ahh, the good old days.)

Jocelyn, you saying there's going to be a showdown between Copyright and the First Amendment?

Nothing so dramatic, but in a sense, everytime the First Amendment is raised as a defense against a copyright action, that constitutes a "showdown."

Anything more's possible, but I doubt it. If a wholesale attack on the Copyright Act and related laws were raised, I doubt they would succeed.

The First Amendment issues, from what I've read so far, tend to come up in the way the law is applied--I'd hazard a guess it came up during the first parody cases, though I haven't read them yet. Anytime there's a law suit or legal action taken against someone for something they write or print, regardless of whether or not they're writing or printing their own work or someone else's, the First Amendment comes out.

Can be a pain in the @ss and slow down the court system, but the First Amendment is meant as a shield, and that combined with the fact that it's PROBABLY the most well-known part of the Constitution aside from "the right to bear arms" means that everyone and his brother who gets in trouble for something they say invokes it.

On the other hand, it makes for some darn fun reading for us lawyers, which is a rare pleasure.

1:53 PM  
Anonymous Shadowed said...

While surfing the EFF site I got the urge to type in "fanfiction" so I did and this little beauty popped up

The law remains blurry about what's acceptable, said Wendy Seltzer, a staff lawyer at the Electronic Frontier Foundation and a fellow at the Berkman Center for Internet and Society at Harvard University. Copyright law protects "derivative works," but it's not clear whether the use of names or characters or histories fall into that category. On the other hand, the law also protects people's fair use of material from copyrighted books for such things as newspaper articles and criticism. The ambiguity also raises a slew of questions about who owns the fan fiction, about what might happen if, say, the author of the original piece lifted material from fan fiction or if fan-fiction writers take from other fan-fiction writers.

Foun id intresting thought you might too.

3:25 AM  
Blogger Jocelyn Smith said...

The ambiguity also raises a slew of questions about who owns the fan fiction, about what might happen if, say, the author of the original piece lifted material from fan fiction or if fan-fiction writers take from other fan-fiction writers.

I can't imagine that any fanwriter could successfully sue an original author for "stealing" from their fanfiction.

A good example of this sort of thing is a case called Pickett v. Prince where a Prince fan made a guitar shaped like Prince's symbol, and then Prince had a guitar made like that. Fan sued Prince, court said that because the fan's guitar was an unauthorized derivative work, he couldn't copyright it, and Prince was free to use it.

One thing that drives me crazy when researching copyright law and fanfiction is that while the law is pretty clear on the above issue--that an unauthorized derivative work can't be copyrighted. But what it's NOT clear about is whether an unauthorized derivative work, particularly a noncommercial fan work for personal entertainment, is infringement. I shall have to read the case again and see if the court touched on it.

8:47 AM  

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