I attended the session on Copyright Puzzles.
Anupam Chander & Madhavi Sunder, Everyone’s a Superhero: The Challenge of Mary Sue Fan Fiction. The draft is still a work in progress, including the title. Chander & Sunder see writing Mary Sues and other self-insertions as paths to empowerment, both in a cultural studies sense and in a civil rights sense. Many fan fictions are unofficially tolerated or even officially licensed, but what if they’re not?
The legal story must include Suntrust, the litigation over The Wind Done Gone. Alice Randall’s lawyer asked at trial, “Who controls how history is imagined?” The black characters, especially Cynara, are Mary Sues – they are given idealized positive characterizations. And that’s a damn good thing.
The paper answers (1) why not write your own entirely original story, (2) why not license the original, and (3) won’t this destabilize the social meanings of icons?
Interesting question from Greg Lastowka about the relevance of video games and creation of visual avatars of the self and how that fits into their theory.
The semi-commons requires both public and private ownership rights. Really all property has such attributes, but in a semi-commons both public and private need to be significant and dynamically interacting. Loren wants strong enforcement of the remaining private rights in CC-licensed works (against commercial uses of noncommercial-CC-licensed works, for example) and strong enforcement of the granted public rights, controlling strategic behavior on both sides.
People tend to respect property rights if they see them as fair, and CC licenses are a way of showing that the copyright owner is behaving fairly.
Comments period: Abandonment, and especially partial abandonment, isn’t a formal part of the copyright statute and it hasn’t been tested. The question is who you want to favor – the heirs getting a second bite at the apple, or the public interested in using the work in the ways the author intended by choosing a CC license.
How are CC licenses going to be terminated anyway? Can you just give notice to the world, or do you have to give notice to the bar that’s playing CC-licensed music? If you have to give notice to the bar, that may serve to protect against strategic behavior by copyright owners/heirs. Also, if the termination provision is unwaivable, that might imply that abandonment is no longer possible.
Loren has a Tasini concern, which is that databases of CC-licensed content will have to go back and extract works if authors/heirs can terminate transfers. She wants the public to be able to rely on CC licenses generally rather than needing specific derivative works/estoppel.
Samuel Murumba, Originality, Fixation, and Idea-Expression Dichotomy: Copyright’s Trilogy or E Pluribus Unum. What authorship means specifically for copyright, and how it can be tweaked. An author, according to Jane Ginsburg, is a human creator who notwithstanding constraints succeeds in exercising minimal personal autonomy in fashioning her work.
Fixation: basic copyright law is that the person who conceives of expression and fixes it in a tangible medium is the author. If, however, someone merely fixes someone else’s work, he’s a mere scribe and not an author. Caselaw has expanded the notion that conception rather than execution is what gives a work authorship or originality. Authorship is mind over muscle.
Mostly, though, it’s not true that people conceive then fix. It’s a dialectic between conception and execution – we write drafts, we tweak, we eventually get a final product. If you take artistic works like painting or sculpture, fixation is creation – there is no work before fixation; to think the creativity lies in conception, then the body just does the work, misrepresents the nature of the enterprise. “The sculptor argues with the wood or stone, the dancer with her body.” (This is a quote but I missed the source.) The creative process is a continuum.
(I thought here of throwing paint on a canvas to see the result, as well as of the sculptor who chips at the block of marble until the statute inside comes out. Then I thought about plays, which rarely exist in final form before performance, and which change in response to performers’ interventions.)
Idea/expression dichotomy: The author is the one who authors the expression, not the idea. The dichotomy is packed with lots of different and sometimes contradictory meanings. Sometimes the label “idea” means the thing at issue is not original; sometimes it means it’s functional; most often it means the thing is a building block for other things and thus not protectable.
The model of idea/expression in copyright law is that, at the apex of a triangle representing a work there’s the abstract topic or title, while at the bottom there’s the specific, concrete words. Somewhere in the middle, Learned Hand told us, is the line for infringement. The problem with that formulation is that the levels are not necessarily transitive, because categories don’t work that way in the mind. Chairs are furniture, and (missed the word; substituting bean-bags) are chairs, but bean-bags aren’t furniture.
Pam Samuelson: some ideas the caselaw doesn’t want to protect look complicated enough – close enough to the base of the triangle – that they seem like they should be protectable from that viewpoint, as with the command hierarchy in Lotus or the bookkeeping system in Baker.
Response: Cognitive psychologists think that the most abstract category is regarded as the most distinctive because it excludes lots of the world, but it doesn’t tell you much specific (furniture). Subordinate categories give you lots of information (lounge chair) but aren’t very distinctive (because lounge chair and couch may not be very different). We teach kids “dog,” not “German shepherd.” The power of vague words lies precisely in their nebulous nature.