August 24, 2004 · Richard Posner
Many great comments on my fair use posts; can’t discuss them all, but let me make a few points in response:
With regard to the Patry-Posner proposal for creating a new fair-use defense for unauthorized copying of old copyrighted workers if the copier was unable with reasonable effort to discover the name and address of the current holder of the copyright, several commenters point out that one of the objections to the pre-1976 system, where failure to renewal forfeited copyright, was that people often just forgot to renew or botched the renewal application. No doubt there were unfortunate such incidents. But in general forgetting to renew or botching the application is pretty good evidence that the copyright had little remaining value. People are careful with property that they think valuable. Failure to renew even if inadvertent is pretty good evidence of lack of value.
Another commenter asked, what’s to prevent someone from registering copyright on a private registry without actually owning it, in order to extract a license fee? That’s an excellent question. The conduct would be fraudulent, and should be punishable–severely. Another problem raised by the commenter is that a copyright owner may not know he’s such–he may be the remote heir of a forgotten writer. But that means he’s not likely to benefit from his ownership. Better that his copyright be forfeited than that the work remain in a limbo, where no one can use or copy it because no one can find the owner. In the law of physical property, such a work would rightly be regarded as abandoned, and so should intellectual property, in similar circumstances.
But what all this means is that our proposal is likely to propel into the public domain the works new creative artists, publishers, etc. are least likely to want to copy! That’s a fair criticism, but, in the face of Eldred, I don’t see any way to meet it. Just to be clear, although I think there is a case to be made for allowing continued propertization of valuable copyrights indefinitely, I do think that on balance the Sonny Bono Act is unsound.
On the broader issue of the scope of fair use, a commenter asked why the law should distinguish between parodies and satires. The fair-use defense is broadly available to parodies, but, in general, not to satires. What’s the difference between these terms and should the law recognize it? A parody is a work of criticism or ridicule. A satire is a humorous version of a work that doesn’t criticize it but may use it as a vehicle for criticism. (This is not the only possible definition of the word, but it’s the definition that points up the legally relevant difference.) A parody may destroy the market for the original work, but it does so by criticism rather than by offering itself as a substitute; and obviously copyright law shouldn’t be used to stifle criticism. A satire on the other hand trades on the popularity of the original and may indeed be a substitute. An example is the movie “Abbott and Costello Meet Frankenstein.” This is a humorous version of three earlier horror movies, “Dracula,” “Frankenstein,” and “The Wolf Man.” The movie is not critical; and it offers itself as a substitute for people who want three in one, plus laughs. I had occasion recently to watch the original (1931) “Dracula,” which is the version satirized in “Abbott and Costello Meet Frankenstein.” I was disappointed; it seemed to me the satire had stolen the thunder of the original movie. Another great vampire comedy is “Love at First Bite,” and, again, it is not criticizing any earlier vampire movies, but merely offering a humorous version. Satires, in short, are classic derivative works, which belong to the owner of the copyrighted original; parodies are derivative works too, but are protected by a critic’s privilege that is a part of the doctrine of fair use. For completeness, I note that no one can copyright the idea of the vampire (ideas are not copyrightable; only expression is), but most of the vampire movies incorporate specific expressive features of “Dracula.”
One commenter asked for an example of fair-use counterparts in patent law. Perhaps the clearest is the experimental-use exception, but there are others. For example, a generic drug manufacturer is permitted to use the patented drug to demonstrate that its generic equivalent is indeed therapeutically equivalent (the “testing” exception created by the Hatch-Waxman Act). More broadly, an inventor can use the information in the patent to try to invent around the patent. And Landes and I advocate an expansion of the patent fair-use principle to allow scientists to use patented research tools (such as the oncomouse) without license–provided the scientists aren’t allowed to use the tools to produce their own patented products!