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.

Wednesday, June 22, 2005

Copyright and Free Speech, Part III

Today, boys and girls, we shall, under the guidance of Nimmer, look at specific areas where the interests favoring free speech may trump the interests in copyright protection.

(Heh-heh, now we're getting into the good stuff!)

Your work is yours forever...or not.

Copyright, as we know by now, is the ownership of certain exclusive rights to a creative/original work. An author who publishes a book can own the copyright in that book for several decades, depending on when it was first published, and then he can continue to renew the copyright for a certain number of years.

Before the Copyright Act, an author could "claim protection in perpetuity," as Nimmer puts it--forever. Since the Copyright Act, that's no longer the case.

A person can own a piece of land, or a car, or a house forever and pass that property down to his children and grandchildren, but not the copyright to a book they wrote (or a piece of artwork they made, or a building they designed, etc.) Why is that?

The First Amendment. Nimmer explains that the public interest in encouraging creativity through guaranteeing copyright protection is strong for the author, and balances in copyright's favor against the free speech interests in allowing society to have free access and free use of the work. But when we pass from the author to the author's heirs, the balance changes--the heirs didn't write the book. The interest in encouraging creativity by letting the author's heirs keep the copyright is now less than the interest in allowing society free access and free use of the book--public domain.

But don't fret, authors: with the length of copyright, extensions for copyright, renewal of copyrights that are available, a book published today in 2005 might well not pass into the public domain for 100 years. You and your heirs will have plenty of time to reap the profits.

Idea, Expression, and the Public Interest...

Finding the difference between the ideas, which aren't copyrightable, and the expression, which is, is relatively easy for written works or even artwork. But what about photographs or publication of facts?

Nimmer gives two good examples: the photographs of the My Lai massacre in Vietnam, and the films of JFK's assassination.

There was copyright in both cases, vested in the photographer and the person who took the home movies of the assassination, but both times, the Court found that "no words describing the 'idea' of what happened could substitute for the image," and there was a public interest in "having the fullest information available." To allow the copyright holder in either case to prevent copies of those images from being made and distributed to the public, not to mention the investigating authorities, would have been intolerable.

Nimmer tentatively suggests that this special category may be limited to "news photographs" or other similar works of public interest and importance.

In the JFK home movie case, the Judge (with whom Nimmer disagrees) said that any competitive disadvantage of the defendant's use of the film was speculative, and that it would be more likely to enhance the value of the copyrighted work (the home movies of the assassination.)

Nimmer says this is like arguing that if a motion picture company takes someone's novel and uses it as the basis of the film, the novelist is not likely to be injured because the film is likely to enhance sale of the novel. (For a current events case-in-point, look up the play, Frank's Life and the movie, The Truman Show.)

Another case where Nimmer feels the balance may have been unjustifiably tipped in favor of speech rights was where Random House copied a series of articles on the life of Howard Hughes and published them in an unauthorized biography. Hughes's company, which owned the copyright and had a biography of its own, sued to stop them, but the court refused, citing the public interest in "being acquainted with the life of a person with...extraordinary talents..."

Although the facts of Hughes's life are "ideas" and uncopyrightable, Random House did more than that and copied the expression in which Hughes's company held copyright.

The First Amendment and Fair Use

Fair use and the free speech, although related, are not the same thing.

As one court put it, "The tension between the First Amendment and the copyright statute...does not exist...because the doctrine of fair use...has been precisely contoured by the courts to assure simultaneously the public's access to knowledge of general import and the right of an author to protect his intellectual creation..." (Quoted from Nimmer.)

While it isn't quite so simple as that in most other courts, it's a good point.

For example, as the Nation Magazine case showed, just because something is "newsworthy" or the magazine is in a hurry to put together a major story doesn't mean said magazine can go and copy 300 words of copyrighted text verbatim in lieu of writing their own treatment of the uncopyrighted facts.

Fair use is the doctrine of limiting the monopolies that copyrights bestow at the discretion of Congress and the courts. They could re-expand the monopolies if they chose, but not to the extent of colliding with the First Amendment.

View all the rights that surround a piece of intellectual work (a book or art etc), as a circle. There are two smaller circles within that circle, each inside the other, that represent different layers of rights.

The smallest circle encompasses all the copyrights that belong exclusively to the author. Any actions that fall within that circle, the author is free to permit or refuse.

Beyond the author's rights circle is the fair use circle, and other "exceptions" to copyright. Those are certain actions that Congress and the courts have decided, through laws and rulings, there is a public interest in permitting, like commentary about a work, a parody, criticism, educational and library distribution. Congress may be motivated by a free speech interest when it chooses to take an action out of the inside circle and put it in the second circle, but it's still acknowledged USE of the author's work, even if the author can't stop it.

Beyond the fair use circle is the First Amendment free speech. Here lie all the rights relating to ideas and messages that no act of Congress or an author can stop. This is where ideas themselves fall, or stories involving scenes a faire (plotlines, characters, or themes that are SIMILAR to another author's work--genre staples, if you will, like the suave international spy types or the little boy wizards in general).

Case in Point: The Wind Done Gone

Nimmer gives a good illustration of how these three circles coexist and how the courts distinguish between them with Suntrust Bank v. Houghton Mifflin Co., the case of Alice Randall's novel, The Wind Done Gone, a book undeniably based on Gone With The Wind, which relates the events in the literary classic through the eyes of a slave on Tara plantation--who happens to be Scarlett O'Hara's half-sister.

When the case began, the court issued an injunction preventing publication of The Wind Done Gone. But the appeals court vacated the injunction as "an unlawful prior restraint in violation of the First Amendment."

(A crash-course in First Amendment/free speech law: a "prior restraint," or any action by the government to PREVENT speech from taking place, is considered the most suspect of all, and is only allowed in the most pressing circumstances--and apparently, an approaching copyright violation is not one of them.)

When the court finally dealt with the book itself, they looked at it not in terms on free speech, but fair use, and through fair use, the court held that The Wind Done Gone was legal: a parody.

"Sews a new stitch of fabric to the intricate framework of [Scarlett O'Hara's] existing fictional personality" was the defense Randall had made of her book. (My amusement at the mixed metaphor aside, I haven't read the book, so I don't know whether it reads like a traditional parody or not, but the court thought so.)

With that, ladies and gentlemen, I come to the end of my lunch break, and also, this chapter. That's also the end, more or less, of Nimmer's treatment of copyright and free speech, so next time, I shall attempt to apply other sources of free speech law to copyright and see what comes out.

To be continued...


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