Answers To Textbook Questions: Copyright Violation?

from the oh-come-on... dept

Just a few weeks ago, in writing about the pointlessness of "derivative rights" in copyright law, I questioned the "example" of an answer key for a textbook, noting that there was no reason to have it covered by copyright:

But, to me, this seems ridiculous on a basic common sense reading. I can't fathom how anyone can (at least honestly) claim that copyright really has an idea/expression dichotomy and then say that Section 106(2) makes any sense at all. What's wrong if someone else wants to produce an answer guide to an original textbook? Why would it ever make policy sense to deny such a right? In most cases, you would assume that the original creator of the textbook would have a better understanding of the topics and the answers, so an "unauthorized" answer key is unlikely to be as valuable. But why should it be prevented? On top of that, if the answer key is just answering questions, then how could it be infringement? Those answers are accurate "facts" responding to questions. If an answer key is infringing, then wouldn't that make student answers infringing as well?

Apparently, though, others don't agree -- and they're the folks who make the rules. Michael Scott points us to the news that a court has ruled that answers to a textbook questions are a derivative work, and someone who was selling such answers online was infringing on the copyright of the textbook publisher. This still makes no sense to me. First, there's no "copying." Second, isn't answering a question a "factual" statement? How can answering a question be copyright infringement? From a policy and common sense perspective it makes no sense. But, that's what you get with the way copyright law is these days. It's not about the incentive to create, but about stifling competition and free speech. In the meantime, I can't wait to see the next student sued for copyright infringement for answering his homework questions.

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Why Do Content Creators Get Control Over Derivative Works?

from the trying-to-figure-it-out dept

Doug Lichtman's latest IP Colloquium takes on the question of derivative works, mainly discussing the infamous Harry Potter Lexicon reference guide that a judge recently barred from publication. In the program, Lichtman talks with the General Counsel of Warner Bros. studios, Jeremy Williams, and Anthony Falzone from Stanford's Fair Use Project. Unless you're really into some of the very very narrow details of copyright law (such as the differences between the various sections in copyright law), much of the discussion may not be that interesting. There were a couple of things worth noting, however. I tended to think that Williams' views on fan fiction made a lot of sense -- where he basically said that studios recognize that it's a bad idea to stop fan fiction, and that the studios have to learn to let go of trying to control everything. I was actually quite surprised that Lichtman pushed back on this point, with an argument that, to me, makes little sense: suggesting that if an artist could potentially at some future time benefit from creating their own such works, then any derivative work should be seen as infringing and likely stopped.

I thought that Falzone did an excellent job rebutting such suggestions from Lichtman later in the podcast, leading to some points at the end where Lichtman recognizes that many of the issues around whether or not derivative works should be allowed are actually redundant to questions of fair use. But he does claim that there are a few situations where fair use and derivative works don't overlap. However, I had trouble finding any that make sense. Lichtman gave an example of a teacher's answer key to a college textbook, where he notes that the answer key probably doesn't substantially copy the original work, but could be controlled by the original publisher via a "derivative work" claim of Section 106(2) in the Copyright Act.

But, to me, this seems ridiculous on a basic common sense reading. I can't fathom how anyone can (at least honestly) claim that copyright really has an idea/expression dichotomy and then say that Section 106(2) makes any sense at all. What's wrong if someone else wants to produce an answer guide to an original textbook? Why would it ever make policy sense to deny such a right? In most cases, you would assume that the original creator of the textbook would have a better understanding of the topics and the answers, so an "unauthorized" answer key is unlikely to be as valuable. But why should it be prevented? On top of that, if the answer key is just answering questions, then how could it be infringement? Those answers are accurate "facts" responding to questions. If an answer key is infringing, then wouldn't that make student answers infringing as well?

In listening to the podcast, the only thing I could think was that I can't come up with a single example where it makes sense to give the original creator the right to derivative works. I recognize that may be an extreme, but take a look at cases like recent banning of an unauthorized (and, apparently, not very good) sequel to Catcher in the Rye. I can't see any reasonable explanation for how a society that prides itself on freedom of expression and encouraging creative works would ever deny such a right. It does not harm the original work in any way. It does not remove the ability of the original creator to create their own derivative work in any way. And it's hard to imagine a situation in which an unauthorized derivative work would take away from the ability of the original creator to profit. Does anyone honestly think that if J.D. Salinger wrote an actual sequel to Catcher in the Rye people wouldn't buy it because they'd already bought the unauthorized sequel written by some other guy?

So if it's true that copyright only protects the expression and not the idea, how does control over derivative works make any sense at all?

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Remixing Is Creating And Original -- It's Not Just Derivative Copying

from the understanding-creativity dept

At the beginning of the month we were one of the first to write about the amazing Thru-You "album" created by a DJ named Kutiman, who took individual sounds off of YouTube and mixed them into a full album. I've always been a believer in the concept that remixing something is a creative endeavor in its own right, but I'd never seen the point driven home quite as clearly as in this album. Not suprisingly, Kutiman has received plenty of well-deserved attention for the project, and Wired is running a great interview with him that's well worth reading. The idea that what he's done is almost certainly illegal and copyright infringement (he seems incredulous at the idea) should be a clear indication that something is wrong with the current copyright regime.

But, again, there's this false belief out there that "remixing" is simply copying. But I defy anyone to explain how taking a simple kid playing a scale on a trumpet could become integral to an entire (great) funk song. Here's the trumpet bit:

And here's the full song: Or how about this basic trombone solo becoming such a haunting and compelling part of this dub reggae song (trombone comes in at 42 seconds). Here's the trombone: And here's the full song: To say that's "copying" or even just derivative is insulting to the amazing creativity and work of Kutiman to blend all these totally separate sounds into something amazing. Just as a musician plays notes on an instrument, Kutiman used YouTube as his instrument and created something amazing and wonderful... that probably breaks a ton of copyright laws. It's difficult to see how anyone could claim that's not a massive problem.

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Garfield Minus Garfield Gets Its Own Book... And No Lawsuits, Either!

from the amazing dept

Back in June, we noted how sad it was that we were all so happy that Garfield creator Jim Davis didn't freak out about the derivative comic strip "Garfield Minus Garfield." In this day and age, we're so used to creators sending out cease and desist letters and claiming "ownership" that it was refreshing to see a content creator actually happy about someone building (or, in this case, subtracting) off his work. This should be the norm -- but instead it's a unique thing. Witness the silly spat over who "owns" Flat Stanley, for example.

However, the Jim Davis/Garfield thing is getting even better. It appears that Davis' publisher, Ballantine Books, has worked out an agreement with the creator of Garfield Minus Garfield to publish a book of those strips as well, and they're doing it in conjunction with a 30th anniversary Garfield book. And, once again, Jim Davis seems thrilled about the whole thing:

"I think it's an inspired thing to do. I want to thank Dan for enabling me to see another side of Garfield. Some of the strips he chose were slappers: 'Oh, I could have left that out.' It would have been funnier."

I look forward to a day when the idea that someone being thrilled that they inspired someone else's creative works as a derivative of their own isn't newsworthy. In the meantime, kudos to Jim Davis, Ballantine... and, most importantly, Dan Walsh for his creativity in coming up with Garfield Minus Garfield in the first place.

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Sad: We're Thrilled That A Content Creator Isn't Suing Over A Derivative Work

from the a-sign-of-the-times dept

A friend of mine sent me to Garfield minus Garfield a few months back. It's a slightly bizarre and surreal showing of Garfield comic strips where the lead character, Garfield the cat, is removed from the cartoon, leaving only his owner Jon Arbuckle. The result is that it totally changes the meaning of some of the strips, leading to a sort of... existential despair. The NY Times wrote a story about it this week, which I read -- but perhaps the most interesting point is noted by Mathew Ingram: Jim Davis, the creator of Garfield isn't bothered by it. In fact, he seems to enjoy it, having thanked the creator of the site, and noted that it made him go back and look at the entire body of Garfield comics in a very different light. What's somewhat sad about this is the fact that a content creator not reacting angrily or threatening to sue (or just filing suit) over a derivative work is considered so rare to merit mentioning. Clearly, we still have a long way to go.

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If Copyright Is About Incentive, Should It Allow Total Control Over The Work?

from the questions-being-asked dept

William Patry points us to an interesting draft of an article by Prof. Shyamkrishna Balganesh (of University of Chicago Law School) for the Harvard Law Review concerning how the courts rarely take into account the real purpose of copyrights in deciding what copyrights allow people to do. The basic premise is that copyright is designed solely to be an incentive to get people to create new works -- and, as such, some of the powers that the courts and Congress have added to copyright seem to go well beyond that core purpose. Specifically, Balganesh suggests that copyright shouldn't prevent others from using the content in ways that the original author never foresaw, as those uses clearly should not have influenced the original incentive to create, since they were never even thought about. While Patry gives some compelling reasons why Balganesh's current argument is a bit flawed, it does bring up a variety of interesting and important questions concerning what copyright really should be doing.

Most specifically, this argument is going to become more and more important as content creation increasingly moves away from a "broadcast" model to a many-to-many "communications" model. In such a world, things like fair use, derivative works and whether someone should "own" all downstream uses become much more important:

None of copyright's current doctrinal devices enable courts to circumscribe a creator's entitlement by reference to the incentive structure that the institution is premised on. As a direct consequence, creators (and their assignees) are often thought to be 'rightfully entitled' to any revenue stream associated with their creation, whether or not it owes its existence solely to the creator and regardless of it having been developed well after the creation of the work.... Individuals will (and can) not factor the unforeseeable consequences of their actions into their ex ante reasons for acting. Consequently, limiting copyright's grant of exclusivity to uses of the creative work that were foreseeable to a creator at the time of creation is likely to better align creators' creative decision-making with their incentives.

In other words, just because your work is used in part by another to create something new and different, it often doesn't make sense to give the original creator control over that work -- especially if it has nothing to do with the original incentive to create. Somehow, I'd imagine that JK Rowling would disagree.

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Neil Gaiman On JK Rowling, Fair Use And The Flattery Of Derivative Works

from the flattery-will-get-you-everywhere dept

Copyfight points us to a fun blog post from Neil Gaiman where he discusses the lawsuit involving the "Harry Potter Lexicon" that JK Rowling is so upset about. He makes a bunch of good points about fair use and derivative works, saying that he'd be flattered if someone had done something similar with his works, and also notes that his own first books probably could be found as violating copyrights as well, and he's happy that no one acted like Rowling in trying to sue him for his work:

Lots of emails from people asking me to comment on the JK Rowling/ Steve Vander Ark copyright case. My main reaction is, having read as much as I can about it, given the copyright grey zone it seems to exist in, is a "Well, if it was me, I'd probably be flattered", but that obviously isn't how J.K. Rowling feels. I can't imagine myself trying to stop any of the unauthorised books that have come out about me or about things I've created over the years, and where possible I've tried to help, and even when I haven't liked them I've shrugged and let it go.

Given the messy area that "fair use" exists in in copyright law I can understand the judge not wanting to rule, and assume that whatever he says the case will head off to the court of appeal.

My heart is on the side of the people doing the unauthorised books, probably because the first two books I did were unauthorised, and one of them, Ghastly Beyond Belief, would have been incredibly vulnerable had anyone wanted to sue Kim Newman and me on the grounds that what we did, in a book of quotations that people might not have wanted to find themselves in, went beyond Fair Use.

He also goes on to note, if somewhat tangentially, that others have accused Rowling of copying his own works -- specifically The Books of Magic that involve a young magician "with potential" who (at one point) goes off to a magic school. Gaiman points out that he does not believe Rowling took the idea from him (or even that she read his works), but that people writing within a certain genre are always going to overlap with ideas -- some of which they glean from others and some of which they come up with themselves. And that's a good thing. It's only in this unfortunate era when people seem to think that all ideas must spring brand new from a virgin mind that the ideas of sharing, building on the works of others and creating new derivative works are seen as being bad.

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Is A Photograph A Derivative Work Of The Object In The Photo?

from the you-would-hope-not dept

There's an interesting discussion going on over at William Patry's blog, questioning whether or not a photograph should be considered a "derivative work" of the object or objects in the photo. The courts appear to be somewhat split on this. The importance of this concerns whether or not the photograph itself can be covered by copyright -- and also whether or not the photograph can be considered infringement itself. If the photo is considered an unauthorized derivative work, then it's entirely possible that whoever holds the copyright on the object in the photo could claim that the photo itself is infringing. Remember, in the past there's been some concern about the legality of photographing copyrighted sculptures. A derivative work is supposed to be for something that "recast, transformed, or adapted" the original work, and is normally used for something like a translation of copyrighted material. However, does a photograph really recast, transform or adapt the object? Or is it an entirely separate work?

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