Subject: license to derive (implied) -- cookie cutters, etc.
Date: Fri, 11 Apr 97 12:13:01 -0400
From: ddailey

Discussion on this list over the past several months has considered copyright for clothes, buildings, golf courses, and more recently rubber stamps. These are joined by several other categories of copyright-worthy works for which an implied license to create derivative works exists by virtue of the work's function or location. The ubiquity of such works is sufficient, I think, to severely restrict (in the general case) the scope of the copyright holder's supposedly exclusive right to create derivative art.

For buildings, section 120 of the US Copyright Act should allow us to believe that they (and perhaps, by extension, other publicly visible architectural works such as landscape art) can be photographed (unless of course the buildings contain rock and roll thereby coming under the purview of ASCAP rather than US law).

For clothes, the statute seems to leave open the possibility of copyright protection since both the sewing pattern and the fabric decoration often contain purely aesthetic, non-functional elements. But decency laws seem to prefer pictures of clothed people to pictures of naked ones even though the clothed ones are wearing intellectual property. Garmenteers probably don't want the trouble of needing to grant permissions in the first place. Hence, in both cases, there is a license (either statutory or implied) to create derivative works.

Cookie cutters, coloring books, board games, beads, building blocks, toy soldiers, clothes, fabric, buildings, window shutters, shoe treads, tattoos, and wallpaper can all serve as examples of items for which there exists an implied license to derive.

Consider the coloring book. Coloring books are routinely published with a copyright notice, but without the written permission from the copyright holder for others (as required by the statute) to make derivative works (e.g., to color in them). Instead there is an implied license to do so. What the publisher is protecting is apparently against others copying their coloring book, not against children coloring in them. By extension, the highlighting pen the primary function of which seems to be to enable the possessor to illegally create derivative works (underlining words in a copyrighted text without permission), could be seen as not unlike the hookah -- worthy of seizure and impounding -- overt evidence of intent to misbehave.

In the case of the cookie cutter, the cookie cutter creator imagines a brilliant cookie -- a cookie so wonderfully shaped that all who behold it will gaze in wonder that such a cookie was never before cut. The designer commits this shape to a tangible medium and casts it into a stainless steel cookie cutter. The cutter is then mass-marketed. Purchasers (largely oblivious to copyright law) then begin blithely creating cookies, and innocent though their intent may be, they put decoratively infringing sprinkles upon the derivative works; they may even photograph the cookies to show a distant grandpa how festive their holiday table has become, or sinking to new lows, some of the cookies may be sold in an elementary school bake sale.

Board games presumably allow for the copyrighted rules and pieces to be performed in a game. The game has little value without being playable. Is not the play of a game an original expression? May I not photograph the outcome of a game of Scrabble?

May I not construct a necklace out of a collection of superbly sculpted Venetian glass beads? May I not hang a hand-carved window shutter on my architected home? May I not assemble and then photograph a collection of action figures in an imaginary battle? May I not photograph my son because he is wearing a t-shirt with Big Bird on it?

Or a plaza in downtown Los Angeles because a sculptor put a sculpture in the middle of it? May I not design and create a Halloween costume for my child because the fabric I purchased has the likeness and image of Darth Vader upon it?

Of course I may. The reason Section 120 allows people to photograph buildings is the same reason it should have been written to allow me to color in my coloring book. The fact that statutes have been written the way they have is somewhat of a historical accident involving the continued battering of constitutional sand by waves of special interest. Because of a statute's insistence that, among other things, the right to make a derivative work must be secured in writing from the copyright holder, we are forced to invent, like angels, numerous implied licenses to conduct our lives sensibly in an environment already overstuffed with signature-bearing-artifacts. As I argued in a previous post ("photographing the environment"), if IP laws make it illegal to use cameras in the environments we inhabit because of all the proprietary expressions that crowd every nook and cranny of our lenses, then cameras should not be sold in cities.

Copyright is meant to protect the author of A from others who would recreate A. When the difference between A and A' is small then copyright will also prevent the creation of A'. However a part of what A is is the use to which it is put. A cookie cutter is not a cookie and a building is not a photograph. A cookie cutter is meant to cut cookies. A building is inevitably (in the typical case) visible from the street. By intent, copyright law should protect the architect from another who would replicate her design in a new building. It should not and likely was never intended to so inhibit the progress of the arts that photography of sculpture should be prohibited or that purchasers of a Monopoly game should have to write to Parker Brothers for permission to perform the rules, or that photographers would be limited in their art to taking pictures of wild boars (since domesticated pigs may contain copyrighted DNA). It is ludicrous that I may not use my shoe to create a footprint without obtaining written permission from the manufacturer, even if the tread contains a raised logo that says "Nike." It is just as silly that I may not photograph the footprint so created. What a sensible set of laws should inhibit me from doing is creating a new shoe tread which copies another. I can photograph a golf course, but to the extent that it is an original expression I may not be allowed to recreate one.

Under the above analysis, implied license would exist to re-express an expression in media other than those subtended by the original. Perhaps the exclusive right for derivation should extend no further, with the statute being amended to read "among the exclusive rights of the copyright holder is the right to 'copy' or to use, as a part of a derivative work, within those tangible media utilized within the original" -- or some such wording. If so, the Koons case (sculpted puppy dogs), the case of the sculpture in the Batman movie, the R&R Hall of Fame case, and several others are wrongly decided. The language used in many contracts which assigns from the author to the studio "all rights now known or hereafter discovered in perpetuity and throughout the universe" (which incidentally gives the studios the right to reverse engineer the artist's brain and sell knock-offs of it on Vulcan) would be rendered once and for all, legally-as-well-as-logically-silly. Many on this list would probably not object to such a viewpoint.

But at the same time, might such a viewpoint not overly undo the intent of exclusivity reserved for derivative works? It seems as though the revenues associated with posters, post-cards, t-shirts, bedspreads and action figures have become a part of the economics of doing mainstream visual art (at least once fame is achieved). It is probably such a thing as protecting a cartoonist's exclusive right to license and market action figures that got the exclusivity clause attached to derivative works in the first place. Perhaps elimination of the restrictions on derivation would prove problematic, but with the expansion of the copyright industry's grip upon both ideas and expression at the expense of the progress of the useful arts and sciences, it is perhaps worthwhile to err on the side of the public for a change.

Do we really want only to license our shoes rather than to own them?