May 7, 2004  ·  Siva Vaidhyanathan

Joe Buck commented on one of my earlier posts that when we (or I) use phrases like “creative communities” we tend to slight coders. “Besides the fact that a lot of geeks resent it, it builds unnecessary walls. Many on Jack Valenti�s side of the divide treasure their creative freedom and fight like dogs against any who would block it,” Buck writes.

I could not agree more. I guess I assume too easily that when we discuss copyright, Free Culture, and creativity, we are discussing the vast array of human creative activities. And I assume (perhaps incorrectly) that my audiences see creativity flowing over arbitrary barriers as I do. After all, “convergence” is not just a marketing or engineering concept. It is the essense of stunning creativity, whether embodied in a Picasso sculpture, a Mozart opera, or a phat video game.

So I guess we need to make this point more overtly. After all, as Buck points out, each sub-audience of creators (musicians, composers, screenwriters, directors, hackers, coders, photographers) tend to see these issues in their local contexts — “how does Kelly v. Arriba affect me?”

When I speak publicly, I try to get musicians, for instance, to see that Alice Randall’s experience with getting The Wind Done Gone published is something they might have to experience themselves. And that as cultural citizens, they should be concerned about her experience anyway.

BTW, in The Anarchist in the Library, I make the case that the appeals court had to cheat to get The Wind Done Gone published. It is not a parody of Gone with the Wind. It is a transformative work that should have been allowed on those grounds. But the court was not willing to move beyond the narrowest reading of Campbell v. Acuff Rose. So we are stuck trying to force non-parodies into parodic costumes just to avoid prior restraint.

  • Kentab

    I am wondering how you distinguish between a transformative work, which you imply is (or should be?) exempt from copyright infringement and a derivative work? And on what do you base this?

  • Seth Finkelstein

    “The Wind Done Gone” was not parody as much as commentary in a literary format. That format is being confused with function.

    Of course, drawing the line between such commentary and fanfic, which is more derivative, could be challenging.

  • James Day

    The previous fair use decision for thumbnails seems like the most useful thing to come from Kelly v. Arriba Soft, for it did apparently reach a well considered conclusion in court.

    It’s also interesting that on one of his sites Kelly appears to be trying to limit the scope of the default judgement to just the specific case at hand, placing the images directly in an image editing program, without accompanying that presentation with the context of the original placement. Given that, I’m even less inclined to draw any conclusions beyond “if you’re writing an image editing program that has web serarch links, be sure that when an image is loaded for closer examination by your end user, you also retrieve and make available the accompaning context so the rights can be considered if it turns out that the end user likes the image”. Briefly: don’t discard copyright information.

    Placing things in that sort of context appears not to be an unreasonable requirement, so I’m reluctant to draw any dire conclusions, particularly given the generally unsatisfactory nature of default judgements as the basis for a good conclusion.

    Very broad transformative use, far beyond what’s prudent in the US today, doesn’t bother me at all. I trust that to the extent the original work’s market might be affected, the original creating party has the experts in the work and can do a better job of exploiting and marketing it.

  • matt perkins

    Timothy — if you think the Wind Done Gone case was a fiasco, representing a problem to be cured by shorter terms but not by limiting the derivative right or by broadening fair use, does that mean that you would conclude that TWDG would have infringed if it were published, say, 10 years after GWTW? 20 years?

    How much time needs to pass before it’s okay to criticize?

  • Timothy Phillips

    If I had my ‘druthers the term of copyright would be between 40 and 50 years. The limitations imposed by the Universal Copyright Convention probably mean that we are stuck with a minimum term of 50 years. But I’d consider it a good start if we could just knock it back from 95 to 75 years.

    A derivative work that infringes a copyright infringes it as much on the last day of the monopoly’s existence as on the first. And of course the existence of these monopolies reduces the public’s freedom, including its freedom to criticize in certain ways, while the monopoly endures. During the copyright it is not “okay to criticize” a work by creating a derivation that infringes the copyright. Tough. If we’re serious about promoting progress by means of these monopolies, the monopolies need to be robust enough to be a credible incentive, and that means we forego for a time some of the rights we would otherwise enjoy over the work in question. The theory is that we give authors these monopolies, thereby reducing our freedom in the short term, in order to get “progress”, thereby enhancing our freedom in the long term. In practice, of course, Congress is expanding the scope and duration of copyright, reducing our freedom, and we have gotten almost nothing in return.

  • Ann Bartow

    Hi Siva,
    I agree with you that the appellate court reached the right conclusion for the wrong reasons in allowing publication of the Wind Done Gone, but I propose an alternate “right” reason – the Wind Done Gone is not “substantially similar” to Gone with the Wind. I discuss this in a paper called “Copyrights and Creative Copying” forthcoming in the Ottawa Law and Technology Journal, and available now at hhtp:// My thesis is that reigning in the definition of “improper appropriation” in the context of substantial similarity and unauthorized derivative works claims will allow for a lot more transformative creativity that does not provoke successful infringement litigation.

  • Joe Buck

    Thanks for taking my comment so seriously. At the risk of appearing to be a nitpicker, however, I must point out that in the computer industry the term “coder” is reserved for a junior programmer who is not trusted to engage in serious software design, but merely carries out the instructions of more senior software development architects. So it might not be the best term to use in explaining to writers, musicians, and the like that there is another community whose creative freedom is threatened by copyright maximalism.

  • matt perkins

    Well said, that an infringement “infringes” whether early or late in the term. The general consensus among those who agreed (with you) that SunTrust v. Houghton Mifflin was a “fiasco,” was that it was a troubling situation because the fair use case for TWDG was so strong.

    Do you believe that TWDG is a “derivation that infringes the copyright?” If you do, then SunTrust v. Houghton Mifflin was hardly a “fiasco:” it was a legitimate copyright owner asserting his rights. If you don’t, then wouldn’t clarity on what is “fair use” and “transformative” be of help? Doesn’t shorter term lengths just confine these “fiascos” to a shorter window?

  • Nathanael Nerode

    “After all, as Buck points out, each sub-audience of creators (musicians, composers, screenwriters, directors, hackers, coders, photographers) tend to see these issues in their local contexts…”

    Perhaps as someone who has written programs, stories, and non-fiction,
    drawn and painted, taken photographs and video; and written and performed music — and made modifications of other people’s versions of most of the above — and desired to reprint generally unavailable-due-to-copyright instances of most of the above — I am more inclined to see the big picture?