Thursday, October 28, 2010

Is Copying or Parody the Sincerest Form of Flattery?

A recent episode of South Park included a parody of the movie Inception. Normally a parody would be considered a fair use in terms of copyright. However, in this instance the creators of South Park claimed to have never seen the film. How was this discovered?

The South Park episode contained several quotes from a video that appeared on the website The video (which first appeared in August contained the line, “Sometimes my thoughts of my dead wife manifest themselves as trains.” The line never appeared in the movie Inception. However, the line was used, along with others from the web show, in the South Park episode, entitled 'Insheeption.'

The South Park creators have apologized to the creators.

In the case of a parody defense to copyright infringement, the copying must be close so that the work can be recognized as a parody of the original work – however, it is a fine line – as a parody must only take what is necessary. This can be a very fact intensive process. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

It is often difficult to determine when copying occurs. (In the instances of text, publishers will often print books with typographical errors to determine if someone has merely made a copy of its work.) Sometimes, the slightest changes will conceal whether a copyrighted work was in fact copied. Ideas and facts can often be expressed in many ways. However, because the South Park episode slavishly copied the work, it was easy to tell where and what was copied.

Monday, October 18, 2010

Privatizing U.S. Copyright Registrations?

Continuing on last week's discussion of the Copyright Principles Project, I am going to discuss one of the reform proposals being suggested by the CPP.

The CCP wants to make the copyright registration process more like the domain name registrar process. CPP: Directions for Reform, p. 26. Since many countries do not require a registration in the first place, I cannot see how this process would work. A decentralized registration process will only make copyrighted registrations more difficult to find. If you have ever tried to locate information regarding domain name registrations and owners, it is not an easy process. (In addition, some domain name registrars encourage and profit from the anonymity of its registration owners.)

There is also a more puzzling aspect – how and who would be in charge of managing copyright deposits. For obvious reasons, the Copyright Office does not post or make available online, a copy of the deposit for copyright applications. I do not believe that copyright registrars would post this information either. Therefore, all the registration would include is a title, author and possibly a description of the type of work.

The U.S. Copyright Office while often referring to itself as a record keeping office, must make some determinations on registration. It is nowhere near the rigorous standards of patent or trademark offices but a minimal review is required. It would be inappropriate for registrars to make determinations on whether the work itself is copyrightable.

There are a couple of organizational steps the Copyright Office could take. One example would be to better categorize the types of works. Broad categories such as sound recordings, performing arts, text and visual arts are somewhat helpful but today we have more definite descriptions that would make it more helpful in searching the copyright office records. Computer software programs, lyrics, musical compositions, websites, sculpture, paintings, architectural designs, etc. are better descriptions for others to search copyright records. (Titles themselves are not an accurate harbinger of what is contained in a deposit for a copyrighted work.)

While the CPP points out that it would also be advisable to have a sort of “small claims” procedure, it would be more than inappropriate to have separate registrars determine such claims. Copyright is a Constitutional principle:

"The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." U.S. Constitution Article I Section 8.

Turning over decisions to determine rights to private registrars may not only result in conflicting results (such as in the instance of domain name registrations) but confusion. Besides the federal court system, a governmental agency such as the Copyright Office would be the only other appropriate way to decide such cases.

Tuesday, October 5, 2010

The Copyright Principles Project - Copyright Law Reform

The Copyright Principles Project: Directions for Reform is attempting to influence a movement to reform the current copyright law to be simpler, easier to understand the more malleable due to changing times. The report can be found here and will be published in the Berkeley Technology Law Journal this fall.

While I agree that the U.S. copyright law could use some revisions especially given technological advances, some of the ideas raised in the report are highly problematic.

First, in a practical sense, the U.S. copyright law has been amended well over 50 times in the past 30 years. 1 Patry on Copyright §§ 1:110-114 (2008).

This has not resulted in the law being able to keep up with the advances in technology. But viewed in terms of other areas of the law, copyright law manages to updated with regularity. The law will never be able to catch up with technology. By the time many laws are passed, new issues arise. It is unrealistic to believe that changes in the copyright law will cause it to catch up to the technology.

It is also inconsistent to believe that we can make copyright law simpler and easier to understand and at the same time catch up with technology. Technologies are complicated. The DMCA is an attempt by Congress to create a system of laws to apply copyright law to the digital age.

Striking a balance between creating an incentive for the creation and promotion of the arts and the rights of the public is not easy. Efforts by the Principles Project create imbalance for sake of ease.

For example, avoiding liability for non-commercial uses of a copyrighted work could make the law easier in terms of understanding what the law is; however, it takes the balance and weighs it heavily in favor of public rights and takes the rights of the author away. Courts have struggled with the problem of non-commercial uses especially under the fair use doctrine, but commercial/non-commercial uses are not the only factor. See e.g. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 539 (1985).

The Principles Project has several other proposals including more “safe harbor” provisions, consistency in damage awards, and other provocative ideas which may the subject of future blog entries.