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!

  • Palooka

    “Just to be clear, although I think there is a case to be made for allowing continued propertization of valuable copyrights indefinitely..”

    As you alluded to earlier, the additional incentive produced by extending copyright terms is negligible. What, then, is the case for “allowing continued properization of valuable copyrights indefinitely?”

  • http://t3knomanser.livejournal.com t3knomanser

    Out of curiosity, how does patent law apply to an individual who takes a patented device and makes their own- and uses it for their own personal use?

    How does it apply if that person posts their instructions for this device?

    Since you’re here, I’m gonna try and pick your brain,

  • Raoul

    ” . . . I think there is a case to be made for allowing continued propertization of valuable copyrights indefinitely.”

    Would make for an interesting blog.

  • http://www.xanga.com/publicdomain WJM

    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!

    I don’t think this is necessarily the case at all.

    There are already numerous outfits that are making good scratch digitizing, systematically, old court decisions, old newspapers, old research tools, and soon, entire libraries. That kind of purse-seining of the public domain will try and capture as much material as possible.

    In addition, in the historical business, you never know what work is going to catch your eye, to be reused substantially as part of your own follow-own synthetic publication, or as a stand-alone revival of a forgotten work. Think Dover, or in the Canadian context, Coles Canadian collection.

    I’ve been doing some research in to how long books stay in print, and it’s amazing the variety of things that don’t stay in print tht should; that do stay in print that shouldn’t; and for what reasons, and by whom, an old work is revived.

    You would be amazed, for instance, at the seemingly insatiable appetite by the blind and visually impaired for early western novels (1910s through 1940s)… yet there’s none for Harlequins! Or the obscure mid-century novel that ends up appearing, in translation, in the 1990s.

    Yes, that one or two percent of works of enduring public appeal and commercial value, with a non-absentee landlord, will likely not fall into that public domain where follow-on creators would want to, and could, make wierd uses of it… but don’t write off the other 98-99 percent just yet!

  • http://www.newmediamusings.com JD Lasica

    Judge Posner,

    Thanks for the explanation of the law’s differing treatment of parody and satire.

    “Abbott and Costello Meet Frankenstein” was released in 1948 — only 17 years after “Dracula.” Regardless of your personal reaction to viewing the original after seeing the satire, the Abbott and Costello film is considered a classic — one of the top satires of all time.

    Today, despite our sped-up culture, you would need to wait 95 years before doing the same without the copyright holders’ permission (or worrying about a lawsuit).

    That’s a travesty.

  • Joseph Pietro Riolo

    To t3knomanser,

    You still infringe patent owner’s rights even if you
    uses it for your own personal use. Don’t even think
    about posting instructions on web because it is
    still patent infringement. There is no exception
    for personal use.

    Now, if I want to be a “bad” guy, I would do it
    secretly in the basement of my house and divulge
    the information to those who agree to Mafia-style
    code of silence. :-)

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Anonymous

    The proposal to make copyright law more like domain expiration law is not a sound one.

    Better would be to place no renewal limits on the holder but to make it expire within a sane amount of time as was originally done at America’s beginning.

  • rp

    The Abbot and Costello was filmed and realesed by Universal, the copyright holder of Dracula, Frankenstein and the Wolf man. I presume that if another studio had tried to do it, there would have been licensing and rights issues to resolve then as well as now.

  • http://oknarb.web-log.nl Branko Collin

    “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.”

    A problem related to this is that a third party could be induced to infringing on the author’s copyrights by licensing a work from the fraud.

    Currently, many book publishers claim full copyright in the TP&Vs of the books they publish. Many record companies claim all rights on the CDs they publish. Assuming they are not always speaking the truth when doing so, why would they be allowed to make false claims in and on the works themselves, but not in a copyright register?

    What about derivative works? What if I control the copyrights to a superhero from a comic strip, but forget to register a postcard that an intern once drew for a charity; only one in a sea of drawings of my hero. One small mistake, and my complete franchise is shot to pieces.

    I could probably use trademark law “and/or a ‘design patent’”, as someone on Slashdot tells me to ‘protect’ my creation, but would that be permissable in the US? I seem to have read somewhere that for instance E.U. courts won’t allow double ‘protection’ of the instance of an idea.

  • Joseph Pietro Riolo

    To Branko Collin,

    You wondered if your franchise will crumble when
    you forget to register your postcard for copyright.
    The answer is probably no. I checked Attorney
    Stephen Fishman’s book titled _The Public Domain:
    How to Find & Use Copyright-Free Writings, Music,
    Art & More_. Chapter 19, Part C, Section 6 focuses
    only on copyright notice (not registration) and
    it said several courts disagreed on the effect of
    lack of copyright notice in a derivative work
    on the original work. It is a grey area. That
    was under old copyright law where registration
    and notice were required.

    Although you can use your creation as a trademark,
    others can use your creation for any noncommercial
    use and for some commercial uses.

    Design patent lasts only 14 years, if you really
    want the protection to last that long.

    Regarding making false claims on copyright, Section
    506(a) in the U.S. copyright law already covers
    that but it is never enforced by the Department of
    Justice.

    (What does TP&Vs stand for?)

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Joseph Pietro Riolo

    Correction on my previous post:

    It is Section 506(c), not 506(a) as originally
    stated.

    Sorry.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • http://oknarb.web-log.nl Branko Collin

    TP&V = Title Page and Verso (the back of the title page)

  • Tim Janke

    The Constitution established intellectual property for the purpose of enriching society, i.e. the public domain. Any copyright that does not expire, or that remains in effect for greater than the average human lifespan, is theft from the public domain. Period.