Copyright
does not protect the fruits of your hard work. It just doesn’t. No
matter what you’ve heard, the legal basis for copyright — in US law and
in international treaties — is to protect creativity, not effort.
If
you labor for five years to create a faithful catalog of all the houses
in a city or all the books in a library, with the goal of creating as
faithful, logical and linear resource as possible, copyright holds no
protection for you.
On the other hand, if
you dash off a haiku in five seconds, copyright will reward you with
the exclusive right to reproduce, display and adapt your work, for your
entire lifetime and 70 years beyond.
Copyright rewards creativity, not effort.
But there’s a weird exception to this rule: a “thin” copyright for “compilations.” Create a catalog of just the good books in a library or just the nice houses in a city and the law will extend you some copyright over this, meant to reflect the subjectivity of your judgments.
If this sounds like a “standard” with some very fuzzy edges, that’s because it is.
Enter
Robert Hovden, a physics prof with a history of provocative copyright
projects that highlight some of the internal contradictions and bizarre
results of copyright’s applications.
Back
in 2014, Hovden created a controversy by reproducing MC Escher etchings
at nanoscale on silver discs, which he sold to collectors. The Escher
estate — notoriously litigious copyright extremists — took the bait and
threatened a suit.
“The
size of the (unauthorised) reproduction is irrelevant… What actually
does amaze me, is the fact that you write that it is an artist who
produces these small works. An artist should realise whether something
is original, or just ordinary thievery.”
You
really couldn’t ask for a better (worse) response — from a licensing
manager’s blanket statements about “originality” that are clearly
(perhaps wilfully) ignorant of the artistic debate about originality, to
claims of “thievery” in molecule-sized reproductions.
I
mean, fair use is a complicated subject, but one of the factors judges
are expected to weigh is “the effect of the use upon the potential
market for or value of the copyrighted work.”
Even
if you stipulate that everyone who purchases a reproduction that’s only
visible under an electron tunnelling microscope will buy one fewer
lithograph, we’re still talking about a vanishingly tiny impact — like,
nanoscale.
Hovden’s
latest is filing for — and receiving — a copyright on a Magic: The
Gathering deck he calls “Angels and Demons.” This deck — a collection of
cards made by a corporation through work-for-hire arrangements with
creators — is now claimed as Hovden’s exclusive IP.
Hovden’s
public communications around this tease that he may prohibit others
from using this deck in tournament play, and says it’s all about “owning
culture and people’s participation in culture through copyright.”
The
implication is that this could spark a stampede to register copyright
in M:TG decks — which are painstaking assembled for home games and
tournament play, sometimes with big-dollar cash payouts — and take the
best decks out of the game.
This is indeed a gnarly question about the ethics, mechanics and practicalities of US copyright law.
Luckily,
there’s an outstanding resource for people who want to go beyond the
provocative thought-experiment and delve into the esoterica.
Back
in 2014, Jennifer Jenkins and James Boyle published the “Open
Intellectual Property Casebook,” a free, superior replacement for the
standard law school textbook that sold for $200.
Jenkins
and Boyle are two of the country’s most esteemed copyright scholars
with a flair for producing distinctive and accessible copyright texts
aimed at students, scholars and the general public.
They’ve published some seriously great classics, like BOUND BY LAW, a primer on fair use and film in comics form:
And
THEFT: A HISTORY OF MUSIC that isn’t just a great comic — it also
reveals that the MC Escher estate’s beliefs about “orginality” are
ahistorical, legally incoherent, artistically nonsensical tosh.
The fifth edition of the IP Law Casebook just dropped, and it features an outstanding and accessible discussion of Kregos, a seminal 1984 case about a guy who made a baseball pitching stats card that the AP reproduced.
Kregos — and a companion case, Eckes,
about a list of the most valuable sports cards — are an excellent
framework for understanding copyright’s “merger” doctrine — the
principle that works where “expression” and “idea” can’t be separated
are ineligible for copyright.
Copyright’s
scope isn’t just limited to “creativity” and not “hard work” —
copyright also only protects “expressions” and not “ideas.” Like, you
can copyright your verse-verse-chorus hardboiled detective novel, but
not the idea that it’s derived from.
If you thought creativity-vs-work made for hard cases, merger is just bonkers.
The contrast between the rulings (and dissents) in Kregos and Eckes
make for brain-melting, fascinating, chewy philosophical reflection (and
the casebook does such a good job of surfacing this).
I
asked Boyle how he thought Kregos applied to Hovden’s copyrighted Magic
deck. He told me that while a Copyright Office registration nominally
carries the implication that the underlying work is truly original and
eligible for copyright, “courts give this varying weight.”
On
the question of the “thinness” of Hovden’s copyright, Boyle was less
clear. When I asked him whether swapping one or a few cards out of
Hovden’s deck would make your deck safe, he said it was “anyone’s
guess.”
More interesting is the question as to whether playing the deck is a violation at all.
Boyle:
“I could in theory get a copyright on a list of Cory’s stories in the
order to reveal his deep Machiavellian plan to foist Zoroastrianism on
the world. But if someone reads that list and chooses to read the
stories in that order, they don’t owe me money — they didn’t copy the
list. They just took the ideas and facts I offered and used them. If you
sold copies of his collection of cards, maybe you would violate. But if
you assemble your own deck with his cards in it? The argument is much
weaker.”
If you want to understand these nuances, I strongly recommend Jenkins’ and Boyle’s free casebook.
Indeed,
it’s increasingly true that if you want to understand the fine points
of law, you can rely on free texts. The IP Casebook inspired a flood of
law scholars to make their own free/open texts that are free, adaptable,
and universal.
There’s Barton Beebe’s “Trademark Law: An Open-Source Casebook.”
For
an excellent, up to date list of open IP textbooks, see James
Grimmelmann’s master list of “Inexpensive and Open-Access IP and
Technology Casebooks.”
In the original script by Dan O'Bannon and Ronald Shusett, the names of the characters were Standard, Roby, Broussard, Melkonis, Hunter, and Faust (there was no Ash character). Walter Hill and David Giler
hated the names, and changed them multiple times during revisions. They
finally settled on Dallas, Ripley, Kane, Lambert, Parker, and Brett,
and added Ash. The script by O'Bannon and Shusett also had a clause
indicating that all of the characters are “unisex”, meaning they could
be cast with men or women. Consequently, all of the characters are only
referred to by their last name, and the few gender-specific pronouns (he or she)
were corrected after casting.
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