Eighth Circuit: Adding A Phrase or Dimension to Public Domain Work Is Copyright Infringement

What happens when you take an image from a publicity still for the Wizard of Oz of Judy Garland that has fallen into the public domain and add the phrase "There's no place like home?" where the phrase is part of a book and film under copyright?   Or if you take that same public domain image and render it in three dimensions with the added detail from your own imagination?

The Eighth Circuit has held that you have engaged in copyright infringement in  Warner Bros. Entertainment, Inc. v. X One X Productions (July 5, 2011) (10-1743).

The decision is an interesting one, finding that the enhancements to the public domain works are "evocative" of the copyrighted book and films.   The decision draws interesting distinctions between a "James Bond" character whose visual appearance changes from film to film, and other cartoon-type characters who are recognizable visually.

A lot of thought went into the opinion, but it will be interesting to see whether other circuits or the US Supreme Court follows in light of the opinion in Dastar.

Enhancements to the public domain will be the hot topic of the next few years in copyight litigation, this is not the last word.

A past post on Dastar and this case here.

Dastar Corporation v. 20th Century Fox Film Corporation et al., 539 U.S. 23 (2003)

Patently-O's take on the X One X case with links to documents here.

Warner Bros Entertainment v X One X Productions 8th Cir July 5 2011

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Fair Use Fridays: Copying Is Not Theft, All Creativity Is Derivative .... Hmmm.....

Ouch! Are they really dancing with CD's?



Well done.

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Fair Use Fridays: YouTube Flunks Copyright School

According to Zeropaid's piece here, accused copyright infringers on YouTube will have to attend YouTube Copyright School, which involves watching a video and taking a quiz.

Why doesn't YouTube's video mention the public domain?  Watch the video and you will see a child-like figure being smashed with a gavel over the head for purported copyright infringement.   It is disturbing to see that YouTube is indoctrinating children into fear of quoting materials by authors living and dead by showing images of corporal punishment meted out by judges.

According to the video, if you are not sure what fair use is, you must consult a copyright lawyer.  Of course all children have copyright lawyers, so that is a workable solution.

YouTube's video doesn't mention copyright law's grounding in the US Constitution, nor the purpose of copyright law.

The US Constitution's Copyright Clause permits the US Congress:

"To 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."

YouTube's video fails my copyright school.


More on the fair use doctrine.
More on public domain.






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Fair Use Fridays: Kandinsky and Copyright: The Murder of American Culture - A Copyright PSA

An unintentionally terrifying Copyright PSA. Zombified children, unintentionally hilarious "fair use" mistakes - I thought it was a spoof, but... this video really shows how misunderstood the fair use doctrine is... by someone purporting to teach it.

Wassily Kandinsky, Composition VII 1913 thanks Wikimedia

The video shows children chanting that a teacher can show no more that 5 images from the artist Wassily Kandinsky in a classroom. Really weird.   Even when things are in the public domain, teachers are brainwashing children that use of the images are verboten.  And then using music samples in a way that is clearly NOT fair use...

but using the zombified kids is really Jonestown Massacre.   Pass the KoolAid.

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Oprah Winfrey Wins Copyright Battle Over Chubbiest US President

In Harris v. Winfrey, 2011 WL 1003807 (E.D.P.A. March 18, 2011), a federal district judge dismissed a claim against Oprah Winfrey but denied sanctions under Rule 11 of the Federal Rules of Civil Procedure.   Copy of motion for sanctions here.  The allegation was that Oprah took materials from a book "How America Elects Her Presidents" (I could not find this book on Amazon).   Plaintiff mailed copies of his book to Oprah, trying to get on her show.   A review of the transcript showed that the only question on Oprah's show that had any similarity to the book was a question of who was the heaviest president.  Answer:  William Howard Taft.   From the decision:

Copyright law protects only an author's original expression; historical facts and information in the public domain are not copyrightable. Id. at 547-48 (“[N]o author may copyright facts or ideas.”); see also Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 342 F.3d 191, 199 n. 5 (3d Cir.2003) ( “[C]opyright protection does not include facts and ideas, but only their expression.”). There is “thin” copyright protection for an author's choices as to the presentation of factual matter. Feist, 499 U.S. at 348. This protection, however, is limited to the author's original, creative contributions, since copyright “protects only the elements that owe their origin to the compiler-the selection, coordination, and arrangement of facts.” Id. at 359. In Feist, for example, the Supreme Court refused to extend copyright protection to a utility company's aggregation of telephone directory information, holding that neither the “raw data” nor the manner in which it was presented qualified as original. Id. at 361.



The material plaintiffs seek to protect here is not original. Plaintiffs argue that Winfrey infringed Harris's copyright in his booklet by referring to an historical fact, President Taft's weight. (Compl.¶ 21.) Winfrey's use of this fact, even if she learned it from Harris's booklet, does not infringe any copyright Harris may have held. This information is not original to Harris, but rather is a piece of “raw data” that preexisted Harris's booklet and is available from numerous external sources.


Plaintiffs also argue that Oprah infringed the manner in which the facts were presented by copying verbatim the way in which Harris “framed the questions.” (Pls.' Resp. to Defs.' to Mot. Dismiss 5.) While the two versions of Harris's booklet presented to the Court do have some hallmarks of originality, neither contains any material in question format. Thus, the framing to which plaintiffs refer, even if copyrightable, is not implicated in this case.


State law claims of unjust enrichment, conversion and tortious interference were dismissed as preempted.    More on Rule 11 sanctions here.  More on preemption here.

Chubbiest US President - William Howard Taft - Public domain image courtesy Wikimedia Commons

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Fair Use Fridays: You Are Listening To New York - Ambient Music and Live Police Radio Feed

Mixture of police radio and ambient music here, beautiful .... thanks to BoingBoing's post here.

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Supreme Court Accepts Progress Clause and First Amendment Challenges To Copyright Extension

From SCOTUS blog on Golan v. Holder:

Issue: (1) Does the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, prohibit Congress from taking works out of the public domain? (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?


Materials from appeal at SCOTUS blog including petition for cert here.

More explanation of the case from Patently-O here.

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Fair Use Fridays: Fedflix - Finding Public Domain Videos From the Federal Government

Fedflix - how to find and download public domain videos created by the federal government video by NewCenturyHistory.   Works created by the federal government are in the public domain.   YouTube video explaining how to navigate http://www.archive.org/details/FedFlix

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Fair Use Fridays: Spiderman Meets Marbury v Madison

With great power comes great responsibility. Great intro to Marbury v Madison. Excelsior!

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Fair Use Fridays: Statue of Liberty in Public Domain

Fair use Friday photo of yours truly by NY real estate guru Paolo Zampolli.  Good example of photographing a public domain sculpture (the copyright expired) and a U.S. government work - the U.S. flag (not subject to copyright).   Despite Paolo's best efforts and the tour of New York Harbor on his luxury speedboat, I did not purchase the Statue of Liberty, despite the excellent price Paolo offered. :-)

Italicized text and images below from http://www.loc.gov/wiseguide/oct04/statue.html

Designed and executed by French sculptor Frederic Auguste Bartholdi, the Statue of Liberty was presented by the people of France to the people of America to honor the friendship between the two nations. The statue's significance has broadened over the years, and it is now recognized throughout the world as a symbol of liberty and freedom. Erected on Bedloe's Island in New York Harbor and dedicated on Oct. 28, 1886, the statue has stirred the emotions of millions.

On Aug. 31, 1876, the Copyright Office issued copyright registration number 9939-G for the "Statue of American Independence" as the Statue of Liberty was first named. The copyright claim was filed in America's centennial year, a decade before the statue was erected in New York Harbor. Deposited with the application in the Copyright Office were two rare images. The first is a photograph of the artist's final study model, believed to be executed in terra cotta. The second image is an artistic rendering of how the statue would appear against the New York skyline after it was finally erected on the pedestal designed by architect Richard M. Hunt. This second image has great significance because it shows a very early version of the statue that most people would not recognize. In the original design, the Statue of Liberty is shown holding in her left hand a broken chain and shackle, which represent freedom newly achieved. Bartholdi later made a major change to his design by placing the chain and shackle, symbolically broken by Liberty, at her feet. He then positioned the familiar tablet, inscribed "July IV, MDCCLXXVI" (July 4, 1776), in her left hand.

In 1984, curators working on the Copyright Office exhibition "By Securing to Authors: Copyright, Commerce and Creativity in America" came across this copyright with rare attached documentation. The historic images described above are on permanent display in the exhibit on the fourth floor of the Madison Building (Monday - Friday, 8:30 a.m. to 5 p.m.), along with documentation for the copyright on the pedestal.


Many images and renderings of the Statue of Liberty, including some that reveal interesting details of this symbol of American freedom, are in the Prints and Photographs Online Catalog. Just type "Statue of Liberty" in the search box. The Historic American Buildings Survey has also documented this work extensively. These images are in the American Memory collection "Built in America." Type "Statue of Liberty Liberty Island" in the search box. The 230 black-and-white photos are older images; the 51 color transparencies offer extraordinary views of the statue during its most recent restoration.


Since the copyright registration and deposit system was centralized in the Library of Congress in 1870, more than 30 million creative works have been registered for copyright protection.



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10th Cir: Golan v Holder - First Amendment Challenge to Berne Convention's Taking Works Out of Public Domain Retroactively Fails

The 10th Circuit ruled yesterday against a group of distributors of foreign copyrighted works that had fallen into the public domain, but which Congress had restored copyright status by 1994 legislation implementing the Berne Convention, following the Uruguay Round of trade negotiations.

The group, represented in part by Prof. Lawrence Lessig and the Center for Internet and Society, included a man who had composed a marching band song based on a Shostakovitch symphony that had fallen into the public domain.

The situation arose because the US used to have a rule that if you didn't put a copyright notice on your work and register it with the US copyright office, it would fall into the public domain.   Many distributors of foreign copyrighted works failed to put proper notices on them or register them with the copyright office.  Notices and registration are known as "formalities".   For a while, the US was a rare country that required formalities, most didn't, pursuant to the Berne Convention.   The US enacted the Berne Convention Implementation Act in 1988 abolishing the requirement of formalities, but it did not restore copyright protection to foreign works that had fallen out of copyright.  In 1994, Congress restored copyright protection to these foreign works (it was not automatic and involved some bureaucracy).  People who'd used the works or created derivative works were supposed to work out reasonable license fees or have them fixed by the courts.

You can find the requirement of formalities in the Copyright Act of 1909.  I have included the entire 1909 Copyright Act for easy reference as an appendix to my Copyright Litigation Handbook.

The decision has a lot of interesting legislative history, and it's got a lot of litigation history.  (From my memory) it was in district court where plaintiff lost, there was an appeal that plaintiff won with instruction to perform a First Amendment analysis on remand, then plaintiff won again with the district judge holding that the statute violated the First Amendment.  Now, the 10th Circuit reverses, link to decision below:

10th Cir: Golan v Holder - First Amendment Challenge To Removal of Copyrighted Works From Public Domain Fails



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Fair Use Friday: Exploiting the Mona Lisa

\Partial image of Double Mona Lisa, After Warhol, (Peanut Butter + Jelly) 1999 Full image here

A basic tenet of copyright law is that once a copyright has expired, it enters the public domain, for all to use.  But when someone adds a copyrightable contribution to a public domain work, that contribution is copyrightable.   So when Andy Warhol made Double Mona Lisa:

Double Mona Lisa (Andy Warhol, 1963)

It is clear that Warhol was using Leonardo Da Vinci's public domain image of the Mona Lisa.   He probably took the image from a photograph of of the Mona Lisa.    The case law says that exact images of public domain works are not protected by copyright.

But now we see Vik Muniz taking Warhol's arrangement of the "double" Mona Lisa - and putting Warhol's name in the title of the work - part of an ancient artistic tradition.  Muniz selects the fine art medium of peanut butter and jelly to execute his work.

Is the borrowing of Warhol's name and arrangement of a PD work ok?  Does the selection of peanut butter and jelly drive the transformative nature of the work?   And would the answer change if Warhol's work were an entirely original composition NOT based on a public domain work?   And does the number of copies matter?

I think Muniz's composition is strikingly original and beautiful masterpiece of 20th Century art. 

Some thoughts for Fair Use Friday.  Meanwhile, watch the video to see whether scientists now believe that the Mona Lisa was pregnant.

Fair Use Fridays: The Disney Trap: How Copyright Steals our Stories

Discourse on the nature of parody, the public domain, James Joyce's Ulysses and copyright law.

Scholarly Access To Images

The Max Planck Institute for the History of Science has put out a sheet called "Best Practices for Access to Images: Recommendations for Scholarly Use and Publishing." The practices identify restrictions that have been put on access to public domain works for researchers in the humanities and talks about how scholars should be restricted in how they use images of public domain works.

In recently researching a case of Nazi looted art, I have been frustrated by non-profit institutions blocking access to copies of documents necessary to trace Nazi-art looting practices in Switzerland. One institution was the Getty blocking access to an official government report, another a German museum claiming that I had to get copyright permission from a deceased Swiss art dealer to make copies of his correspondence with the Nazi regime. Each institution was informed that the documents were for use in an impending court case.

My feeling is that any restrictions on scholarly use of public domain materials by an entity that enjoys tax-free status is presumptively a violation of the public trust, and a restriction of the public domain that conflicts with the complete preemption of copyright law. Only in certain limited cases should museum and library archives be banned from public view, and certainly not unclassified Nazi-era documents. I am sensitive to the fact that libraries and institutions cannot exist on thin air and that some financial support is necessary. If endowments and other funds do permit subsidized access, charging scholars for access should be the last resort.

In the Dastar case the court worried about mutant species of copyright laws making public domain materials unavailable forever, and was explicit that public domain meant the right to use without attribution. Didn't Bridgeman Art Library v. Corel Corp., which held that exact copies of public domain images are not protected by copyright resolve these issues?

Charging fair access fees on an equitable basis (akin to charging for photocopies) seems reasonable. But museums, now all too often acting as a multibillion-dollar theme park industry focused on building new wings and expanding their parking lots, have a tendency to want to cash in to the max on every aspect of merchandising the cultural property in their grasp. If they want to do that, they are violating their core missions and should be taxed like everyone else.

I am grateful to many amazing librarians I have known over the years. I am supportive of this type of research in the humanities. And I don't mind mentioning that the image appearing above, which is a link to the Max Plaenck website, is an image created by Rembrandt of Aristotle with the Head of Homer and that it is to be found at the Metropolitan Museum of Art. But should I be required to do so? And what if it turns out not to be a Rembrandt?

Renoir-Guino: Interminable Foreign Copyrights

A series of sculptures was created and published by Pierre-Auguste Renoir in 1917 in France. Renoir died in 1919. The sculptures were published without a copyright notice. Guino died in 1973. In 1973 (56 years later) Guino (or his estate) obtained a determination in a French court that he was co-author of the sculptures, and was awarded a one-half interest in the sculptures.

In 1984, a company representing the joint interest of certain Renoir family members and the Guino family ("Societe Civile Succession Richard Guino") obtained US copyright registrations based on a claim that the sculptures were unpublished or first published in 1983.

In 2003, Jean-Emmanual Renoir, a great grandson of Renoir, sold "some of the sculptures, or molds or castings thereof" to a gallerist in Scottsdale, Arizona.

The Societe Civile Richard Guino sued Renoir's great-grandson for copyright infringement. Since works published prior to 1923 are all in the public domain, how could this possibly happen?

The Ninth Circuit took a case called "Twin Books" involving publication of the story of Bambi in Germany in 1923 without notice and again in 1926 with notice. The Ninth Circuit made a number of extrapolations from the Twin Books case. I won't go through the reasoning which involves the interplay of the 1909 Copyright Act, the 1976 Copyright Act and the Copyright Restoration Act, but suffice it to say that the Ninth Circuit's rule is that if an ancient Greek vase is discovered tomorrow, its copyright term would be the "finite term of seventy years after the death of the last author [under sections 303(a) and 302(a) and (b)] or December 21, 2047 whichever is later."

The case appears to hold that any foreign publication of a work without copyright notice is to be treated as if the work was not published.

The case is Societe Civile Succession Richard Guino v. Renoir, -- F.3d ---, 2008 WL 5142844 (9th Cir. December 8, 2008). Poor great-grandson Renoir and the gallerist to whom he sold the works also lost Lanham Act claims for false advertising. Rebecca Tushnet's here, and Michael Atkins here. William Patry, who calls the case a "brain-teaser" here. Renoir-Guino photos found here.