Oh The Culture You'll Cancel, Thanks To The Ninth Circuit And Copyright

from the things-actually-worth-being-upset-about dept

If everyone’s going to be talking about Dr. Seuss, then we need to talk about this terrible decision from the Ninth Circuit a few months ago. Not to validate the idea of “cancel culture” in the particular way it’s often bandied about as a sort of whining over people not wanting to be associated with certain ideas, but because when law takes away the ability to express them in the first place, that’s censorship, it’s an affront to the First Amendment, and it’s something we all should be outraged about. And, as this case illustrates, the law in question is copyright.

We’ve written about this case, Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020), many, many times before: some people wrote a mash-up using Seussian-type imagery and Star Trek vernacular to express new ideas that neither genre alone had been able to express before. And Dr. Seuss’s estate sued them for it.

The little bit of good news: their trademark claim failed. Applying the Rogers test to determine whether the Lanham Act could support such a claim, both the district court and the appeals court agreed: it didn’t.

Under the Rogers test, the trademark owner does not have an actionable Lanham Act claim unless the use of the trademark is “either (1) not artistically relevant to the underlying work or (2) explicitly misleads consumers as to the source or content of the work.” Neither of these prongs is easy to meet. As to the first prong, any artistic relevance “above zero” means the Lanham Act does not apply unless the use of the trademark is explicitly misleading. Boldly easily surpasses this low bar: as a mash-up of Go! and Star Trek, the allegedly valid trademarks in the title, the typeface, and the style of Go! are relevant to achieving Boldly’s artistic purpose. Nor is the use of the claimed Go! trademarks “explicitly misleading,” which is a high bar that requires the use to be “an ‘explicit indication,’ ‘overt claim,’ or ‘explicit misstatement'” about the source of the work. Thus, although titling a book “Nimmer on Copyright,” “Jane Fonda’s Workout Book,” or “an authorized biography” can explicitly misstate who authored or endorsed the book, a title that “include[s] a well-known name” is not explicitly misleading if it only “implicitly suggest[s] endorsement or sponsorship.” Boldly is not explicitly misleading as to its source, though it uses the Seussian font in the cover, the Seussian style of illustrations, and even a title that adds just one word?Boldly?to the famous title?Oh, the Places You’ll Go!. Seuss’s evidence of consumer confusion in its expert survey does not change the result. The Rogers test drew a balance in favor of artistic expression and tolerates “the slight risk that [the use of the trademark] might implicitly suggest endorsement or sponsorship to some people.” [p. 31-32]

Note: as you read the quotes from the decision be aware that the court regularly refers to the mash-up as “Boldly” and the original Seuss work it riffed on as “Go!”

But while the Ninth Circuit was accommodating to artistry on the trademark front, it was hostile on the copyright front and overturned the district court’s finding that the mash-up was fair use. It walked through the fair use factors with its thumb heavily on the side of the copyright owner, willfully blind to any “countervailing copyright principles [that would] counsel otherwise.” [p. 11]. For instance, on the second factor, the nature of the work, it looked at the mash-up with a harsher eye because the original work had been a creative one, rather than one more informational. (“Hence, Boldly’s copying of a creative and “expressive work[]” like Go! tilts the second factor against fair use.” [p. 19])

But what’s most alarming is not just how the court applied the other factors, but how its analysis effectively expanded the power of a copyright holder to shut down others’ subsequent expression, far more than the statute allows, the Progress Clause of the Constitution permits, or the First Amendment tolerates.

For instance, on the fourth factor, because the original work, “Oh, the Places You’ll Go,” targeted the graduation market, the court gave it the power to shut out subsequent works that also might serve the same market by somehow construing the mash-up as a competitor with the original, even though it was a distinctively different creature?after all, there was no Star Trek in the original, and the appeal of the second work was entirely based on consumers wanting both genres combined in one.

The court further hangs this analysis on the fact that one of the exclusive rights a copyright holder has is the ability to license derivative works. But when combined with its flawed analysis on the first factor, transformativeness, and also the third, examining the amount and substantiality of the original used, it lets that right to license derivatives effectively swallow all fair use. The Dr. Seuss estate likes to license its works, the court reasons, including to those who might want to combine them with other genres. But if people could do these sorts of mash-ups for free then the Dr. Seuss estate would have a harder time making money from those licenses.

Crucially, ComicMix does not overcome the fact that Seuss often collaborates with other creators, including in projects that mix different stories and characters. Seuss routinely receives requests for collaborations and licenses, and has entered into various collaborations that apply Seuss’s works to new creative contexts, such as the television and book series entitled The Wubbulous World of Dr. Seuss, a collaboration with The Jim Henson Company, famous for its puppetry and the creation of other characters like the Muppets. Other collaborations include a digital game called Grinch Panda Pop, that combines Jam City’s Panda character with a Grinch character; figurines that combine Funko Inc.’s toy designs with Seuss characters; and a clothing line that combines Comme des Gar?ons’ heart design with Grinch artwork. [p. 28-29]

Of course, the answer to this concern is “so what”? Because if the court were right, and this were the sort of market harm that would trump fair use, it would mean that the only such combinations we will ever get are the ones that the Dr. Seuss estate deigns to allow?assuming they allow any at all, because, per the court, it’s totally ok if they don’t (“Seuss certainly has the right to “the artistic decision not to saturate those markets with variations of their original.” [p. 29]). If it chooses not to license a mash-up with Star Trek, then the world will never get a Seussian-Star Trek mash-up. Even though that’s exactly the sort of making-something-new-there-hasn’t-been-before creativity that copyright law is supposed to incentivize. Copyright law exists so that we can get new works, but per this Ninth Circuit decision the function of copyright law is instead to obstruct them.

And it won’t just be this particular mash-up that we’ll have to do without. Because with this decision the court is giving copyright holders the power to not only veto subsequent uses of a work but an entire expressive vernacular (and one that may even transcend any particular copyrighted work).

In fact, this lawsuit manages to not even be about the alleged infringement of a particular work. In some ways it is, such as the way the court takes issue with the fact that the mash-up referenced 14 of the 24 pages of the original Seussian “Places You’ll Go” book [p. 20]. Of course, even that view ignores how unfaithful a copy the later work must inherently be given how much got left behind of the original, and how much space the omissions left for something new. But the court was even more put out by the pieces of the work used, objecting strenuously to the detail of the references, even though the use of that detail was so that the reference could be a meaningful enough foundation upon which to convey the new idea of the subsequent work.

Crucially, ComicMix did not merely take a set of unprotectable visual units, a shape here and a color patch there. For each of the highly imaginative illustrations copied by ComicMix, it replicated, as much and as closely as possible from Go!, the exact composition, the particular arrangements of visual components, and the swatches of well-known illustrations. ComicMix’s claim that it “judiciously incorporated just enough of the original to be identifiable” as Seussian or that its “modest” taking merely “alludes” to particular Seuss illustrations is flatly contradicted by looking at the books. During his deposition, Boldly illustrator Templeton detailed the fact that he “stud[ied] the page [to] get a sense of what the layout was,” and then copied “the layout so that things are in the same place they’re supposed to be.” The result was, as Templeton admitted, that the illustrations in Boldly were “compositionally similar” to the corresponding ones in Go!. In addition to the overall visual composition, Templeton testified that he also copied the illustrations down to the last detail, even “meticulously try[ing] to reproduce as much of the line work as [he could].” [p. 20-21]

And it wasn’t even the pieces of that work that irked the court. In defending its distaste for these verbatim references, the court cites the mash-up’s inclusion of the illustration of the machine from Sneetches, which was, not incidentally, an entirely different work than the book the defendants were being accused of copying too much from.

For example, ComicMix’s copying of a Sneetches illustration exhibits both the extensive quantitative and qualitative taking by ComicMix. Sneetches is a short Seuss story about two groups of Sneetches: the snooty star-bellied Sneetches and the starless ones. The story’s plot, the character, and the moral center on a highly imaginative and intricately drawn machine that can take the star-shaped status-symbol on and off the bellies of the Sneetches. Different iterations of the machine, the heart of Sneetches, appear in ten out of twenty-two pages of the book. ComicMix took this “highly expressive core” of Sneetches. Templeton testified that “the machine in the Star-Bellied Sneetches story” was “repurposed to remind you of the transporter” in Star Trek. Drawing the machine “took. . . about seven hours” because Templeton tried to “match” the drawing down to the “linework” of Seuss. He “painstakingly attempted” to make the machines “identical.” In addition to the machine, Boldly took “the poses that the Sneetches are in” so that “[t]he poses of commander Scott and the Enterprise crew getting into the machine are similar.” Boldly also captured the particular “crosshatch” in how Dr. Seuss rendered the machine, the “puffs of smoke coming out of the machine,” and the “entire layout.” [p. 23]

In other words, because the machine was important to a (completely different) story, the Dr. Seuss estate got to say no to anyone who wanted to reference that import. Yes, the mash-up referenced it in detail, but that’s how the reference could be recognizable. The court is clearly offended by any verbatim copying of any aspect of the image, but fair use does not forbid verbatim copying or otherwise require deprecating the quality of the original. Yet per the court’s reasoning, verbatim references in “overall composition and placement of the shapes, colors and detailed linework” are off-limits, even though using them did not amount to making an infringing copy of the entire work, page, or even full illustration and ultimately became part of something substantially different from the original. Because even if the original work had certain characters in certain poses that the mash-up emulated, it didn’t have them posed in the futuristic environment that the mash-up expressed. That overall visual tableau was something new and different and transformative.

Above is a representative sample of what the plaintiffs showed to compare the two works so you can see what was literally referenced by the mash-up, and how much was obviously different about its own expression.

But the court also glossed over that transformative quality in its analysis of the first factor, instead focusing only on what was the same about the first work instead of what was different.

ComicMix copied the exact composition of the famous “waiting place” in Go!, down to the placements of the couch and the fishing spot. To this, ComicMix added Star Trek characters who line up, sit on the couch, and fish exactly like the waiting place visitors they replaced. Go! continues to carry the same expression, meaning, or message: as the Boldly text makes clear, the image conveys the sense of being stuck, with “time moving fast in the wink of an eye.”

ComicMix also copied a scene in Sneetches, down to the exact shape of the sandy hills in the background and the placement of footprints that collide in the middle of the page. Seussian characters were replaced with Spocks playing chess, making sure they “ha[d] similar poses” as the original, but all ComicMix really added was “the background of a weird basketball court.”

ComicMix likewise repackaged Go!’s text. Instead of using the Go! story as a starting point for a different artistic or aesthetic expression, Hauman created a side-by-side comparison of the Go! and Boldly texts in order “to try to match the structure of Go!.” This copying did not result in the Go! story taking on a new expression, meaning, or message. Because Boldly “left the inherent character of the [book] unchanged,” it was not a transformative use of Go!. [p. 17-19]

It’s bad enough that it supplanted the district court’s original fact finding with its own dismissive judgment, and that copying of an image from a separate work was bizarrely being used as evidence of infringement of the first. But the cynical determination that the second work was only a “repackaging” of any work designed to “avoid the drudgery in working up something fresh” because of how it used certain elements, including ephemeral elements (composition, posing, story structure), in order to produce something fresh, expands what a copyright holder in a work ordinarily can control and puts all sorts of fair reuse out of reach of subsequent creators.

Boldly also does not alter Go! with new expression, meaning, or message. A “‘transformative work’ is one that alters the original work.” While Boldly may have altered Star Trek by sending Captain Kirk and his crew to a strange new world, that world, the world of Go!, remains intact. Go! was merely repackaged into a new format, carrying the story of the Enterprise crew’s journey through a strange star in a story shell already intricately illustrated by Dr. Seuss. Unsurprisingly, Boldly does not change Go!; as ComicMix readily admits, it could have used another primer, or even created an entirely original work. Go! was selected “to get attention or to avoid the drudgery in working up something fresh,” and not for a transformative purpose. [p. 16-17]

And that’s the crux of the matter, because if a mash-up like this, that merged two aesthetics that had never been merged before, even if to convey a similarly inspirational message (“In propounding the same message as Go, Boldly used expression from Go! to “keep to [Go!’s] sentiment.” [p. 16]), can violate a copyright, then a copyright holder has enormous veto power over all subsequent expression that might use the cultural vocabulary it ever introduced.

And that’s what’s truly canceling.

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Companies: comicmix, dr. seuss enterprise

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This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re:

Between ‘copyright law as it currently stands’ and ‘no copyright laws at all‘ I am absolutely convinced at this point, in large part thanks to stories like this, that society in general would be much better off with the latter. Reform to bring copyright back into the realm of sanity would be the best option, but if the only choices were the current laws regarding copyright or none then none would be a far better option.

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MightyMetricBatman says:

Re: Re:

Only to an en banc 9th Circuit and the Supreme Court, neither of which are required to take up the case and likely will not.

I can see someone reasonably finding this is not a fair use.

But the arguments that these judges used, and is now precedent in the 9th circuit, land of hollywood, is appalling bad and can be used to shutdown just about any transformative use.

Rather than a narrow decision showing this is not a sufficient transformation, the arguments therein takes a number uncopyrightable generic elements that are copied and also declaring that is evidence of copyright infringement.

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That One Guy (profile) says:

'Fair use? Never heard of it, profits are all that matter.'

Well now, I can’t see any possible problem with copyright owners being given veto power over any works that might build upon or reference their works, I mean what damage could possibly result from throwing fair use into the garbage and having to ask permission for every bit of creativity?

Cases like this just show how warped and damaging copyright law is, ‘protecting’ a pack of parasites who are only creating legal fees and in no way incentivizing new works to be created(quite the opposite in fact), in direct conflict with the stated goal of the clause that allowed copyright to be included in US law.

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Bobvieuss says:

Oh, the cases you'll know!

This ruling’s a disgrace
With specious arguments
All over the Place

What’s that thing in their head?
Have they brains in their shoes?
What’s the First Amendment?
Do they know of Fair Use?
May we prosper, succeed and always live long
Unlike these rulings, which are totally wrong

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Rico R. (profile) says:

This case isn't just another bad fair use ruling...

(Apologies for this super-long comment… I thought Techdirt wouldn’t be publishing an article about this case anymore, and I’ve been thinking about this case a lot since the ruling first came down.)

This case is proof that copyright lasts too long and is too restrictive. Mind you, under the original copyright term in the US, Oh, The Places You’ll Go would be in the public domain right now. And so would a lot of the culture we grew up with and then some. But thanks to the lobbying of copyright maximalists, all this culture is locked away until well beyond our lifetime. And with the right to prepare derivative works encompassing nearly anything that is based on an existing copyrighted work, the only resemblance we have for reasonable copyright law is the fair use doctrine.

But the problem with that is that fair use was never meant to carry such a heavy burden. Imagine if culture from the early 2000s back were public domain right now. We could build upon works in ways that aren’t currently possible without permission. But because it’s going to be protected for years to come, if we are going to build on existing culture still copyrighted, it has to be permitted under fair use. And under the 9th circuit’s narrow view of the fair use doctrine (which is now sadly precedential), it’s hard to imagine what could be allowed under fair use if it isn’t something listed in the preamble or a parody. This is significantly affecting what kinds of new works can be created.

And this ruling is already having a chilling effect on me… I’m a vidder, and while I’m convinced any of my fanvid’s visual elements would likely be fine under fair use, under the 9th circuit’s logic, the use of the song would be infringing. For that reason, I’m not sure I’ll be creating or posting any more fanvids anytime soon. I’ve often described vidding as a sort of mutual transformation under the law in terms of copyright and fair use. By that, I mean the visuals transform the audio, and vice versa. The 9th circuit’s ruling suggests to me that the visuals could be seen as transformative by the song used, but the use of the song would be infringing without permission. Good luck finding a publisher willing to license synchronization rights to you when the visuals aren’t cleared. And not to mention the price range is likely out of reach for the average vidder.

I suppose that you could always write an original song specifically for a fanvid. But 1, no one would likely watch it, 2, not every vidder is a musician, and 3, I doubt many musicians would want to write a song simply for a fanvid of other copyrighted material. Not necessarily because it’s infringing, but because it could tarnish any sense of "professionalism" and "seriousness" in their craft as musicians. At least that’s why I, also as a musician, don’t like pairing up my original music on a fanvid.

Before some copyright maximalist says, "So what? Copyright is meant to be incentivizing ORIGINAL creativity. Your use of existing works isn’t original enough." Answer me this: What constitutes "original enough"? Cue the usual "sOmEtHiNg NoT bAsEd oN eXiStInG cOpYrIgHtEd MaTeRiAl." Okay, name 1 work created in the past 10 years that is 100% original. Go ahead, I’ll wait…

Spoiler alert: It’s not possible. Every existing copyrighted work is at least partially based on another earlier work. And I’m not talking about Di$ney turning "The Ice Queen" into Frozen. I’m talking about how things like The Blair Witch Project inspired the film genre of found footage. Or how musicians are inspired by those that came before them. The laws of physics don’t cease when it comes to creativity and storytelling; you can’t make something out of nothing. (See the first law of thermodynamics)

And that’s what makes this ruling so problematic. Copyright is now censoring more works than it is incentivizing creativity, and perhaps that’s by design. If fair use is going to remain the last stand many creators have against creativity that would otherwise be considered copyright infringement, this ruling must not be allowed to stand. I’m sincerely hoping they’ll appeal to an en banc court and/or the Supreme Court. If they don’t and/or fail at doing so, then the last hope is either an act of Congress (unlikely given the current ideas of copyright reform) or another copyright ruling the other way in a different circuit, which then must be upheld by the SCOTUS when resolving the circuit split. But until then, this is the end of fair use as we know it.

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That One Guy (profile) says:

Re: This case isn't just another bad fair use ruling...

Before some copyright maximalist says, "So what? Copyright is meant to be incentivizing ORIGINAL creativity. Your use of existing works isn’t original enough." Answer me this: What constitutes "original enough"? Cue the usual "sOmEtHiNg NoT bAsEd oN eXiStInG cOpYrIgHtEd MaTeRiAl." Okay, name 1 work created in the past 10 years that is 100% original. Go ahead, I’ll wait…

Running with that idea there’s also the question of how having copyright effectively eternal(if something lasts longer than your lifetime it doesn’t matter if it’s five seconds or five centuries) incentivizes creativity. People have created works through history and I feel absolutely safe in saying that the percentage of those works that only exist because the creator knew that their work would not only be locked away by copyright but be that way for decades after their death would amount to an infinitesimal fraction of a percentage.

People create, that’s how it’s always been, so even if you want to argue that copyright helps that along you have to weigh that against what copyright costs society and culture, the that are created thanks to copyright(which again is going to be a tiny fraction of total works) versus the works that aren’t created because of the law or are created in spite of the law, and as it stands that ‘balance’ is heavily skewed against the public, creativity and cultural growth.

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Anonymous Coward says:

Re: Re: This case isn't just another bad fair use ruling...

Copyright originated and remains a tool for publishers to obtain control over works and control markets. Its origins are due to the time, cost and material investment needed to produce a run of books. When you have to print as many books as you think you can sell, before selling the first copy, having a pirate take half your market with a poorly proofed and printed copy could ruin a business.

Copyright has never been necessary to encourage creativity, and creativity itself is what attracts and holds a fan base to support a creative person. Indeed for several hundred years, authors were able to make a living by selling original manuscripts to printers. While a portfolio of existing works helps to attract fans, they support a creator so that they can produce new works.

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Enoch Ondorand Belring says:

Re: Yet again, lecturing to an Appeals Level court!

effectively expanded the power of a copyright holder to shut down others’ subsequent expression

A) It didn’t expand it

B) AS EVER here at Techdirt, you leave out the crucial point "USING SOMEONE ELSE’S CREATED PROPERTY" — everyone is free to express their own, but definitely not likely to be free to take and use what others create. THAT’S GOOD LAW, and it’s clear to non-pirates.

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Stephen T. Stone (profile) says:

Re: Re:

everyone is free to express their own, but definitely not likely to be free to take and use what others create

I’m afraid I must inform you of a salient fact that you’ve overlooked, you broken mason jar of a human being: Building on what other people have made is how culture works. Hell, every opinion you’ve ever held — every opinion I’ve ever held, for that matter — is the result of reading the opinions of others, discarding what is useless/meaningless/bullshit, and using what’s left to form a “new” opinion.

But hey, since you think it isn’t right for others to “steal” the work of others, here’s a challenge for you: Create an entirely new work that isn’t inspired, in any way, by the work of anyone else. I’d love to see you try that…because holy shit, watching you fail would be the best laugh I’ve had in months.

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PaulT (profile) says:

Re: Re: Re: Re:

Exactly. Which means they can change at any time to any thing and still be constitutional so long as Congress are the ones who set the rules.

I suspect our friend is doing one of his usual long, desperate stretches where he means that disobeying current copyright rules is tantamount to disobeying the constitution. But, given that he so regularly lies about the actions of people here in that regard, including those not bound by the US constitution, it is a meaningless assertion.

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bhull242 (profile) says:

Re: Yet again, lecturing to an Appeals Level court!

You’re an amazingly arrogant little corporate-supported, pirate-defending pretense at one studied in law.

I don’t know how a person can be a pretense at anything; they can have a pretense, but I don’t think they can be one.

Pedantics aside, what evidence do you have that Cathy Gellis is corporate-supported, and on what basis do you claim that she defends pirates?

Also, I’m not sure how, even if she is corporate-supported, that would make her opinion in this case less valid. The makers of “Oh the Places You’ll Boldly Go!” (the defendants in this case) are not a corporation, but Dr. Seuss’s estate (at least arguably) is. Additionally, corporations (namely publishers and movie studios) tend to support copyright maximalism, not piracy. So, if she is influenced by corporate interests, surely she would be against pirates and also support this decision. And before you say, “But Google/YouTube/Facebook/Twitter…!”, those corporations aren’t terribly opposed to an expansion of what is infringing; the only thing that matters to them is whether they will be held liable for infringement done by users.

Also, this case isn’t about piracy. Piracy, as it relates to copyright, is about infringing distribution, acquisition, possession, and/or usage of (essentially identical and largely unaltered) copies of the original work that are specifically meant to serve the same purpose of the original and replace it. Not all copyright infringement is piracy. If they were selling unauthorized copies of the original book essentially unaltered, that would be piracy. If they were distributing photocopies of the pages and/or cover of the original book, that would be piracy. Instead, what we have here is the creation and distribution of, according to the 9th Circuit opinion, derivative works based on the original book but also distinct in some critical respects. So, even if you agree with the 9th Circuit, this isn’t piracy, even though it would be copyright infringement. So, yeah, Cathy’s opinion in this article isn’t defending pirates or piracy with regards to copyrighted works, even if she may defend pirates or piracy elsewhere.

Basically, this is just an ad hominem attack that doesn’t even work in this case.

Just to start, you wave aside the black letter Constitution provisions!

Well, the only time the Constitution talks about copyright is in Article I, Section 8, Clause 8, which also deals with patents:

[The Congress shall have power t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

So, basically, it just says that Congress can pass laws that grant and enforce copyright and patents, says they have to last only for a limited time before expiring, and says that the purpose of copyright and patent laws must be “to promote the progress of science and useful arts”. It also only says to secure those exclusive rights to authors (and inventors), not publishers, inventors, or estates.

There are also some limitations, though not explicitly spelled out as such, that come from the First Amendment:

Congress shall make no law […] abridging the freedom of speech, or of the press; […].

Other than that, the Constitution doesn’t say anything about the extent of what copyright protects (note that it says nothing about derivative works, when it kicks in, how to get a copyright over a work, or what works or elements are actually protected), its duration (as long as the duration is limited), the idea of passing or selling copyrights to others, or the idea of licensing. (It also doesn’t say anything about fair use, but that stems from trying to balance copyright with 1A rights, and it is also explicitly established in current copyright legislation and treaties.) All of those details are hashed out in federal laws and statutes and in the interpretations of those laws and statutes as well as the Constitution by federal courts. Heck, the Constitution doesn’t even say that Congress must write laws to establish copyrights or patents or anything; it only gives it the power to do so if it wants to.

Now, explain to me how Cathy Gellis here is “wav[ing] away” a plain reading of the text of the Constitution like you claim she is (as opposed to current copyright legislation and court opinions, as those would not be considered part of “the black letter Constitution provisions” even if they are also legally binding, so they would not provide support for your claim).

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