0. 📚 Pre-Class Readings & Resources
📋 Reading Structure
Required for All Students: Core foundational readings (~30 minutes)
Choose Your Focus: One additional area for deeper exploration (~25 minutes)
Total estimated time: ~55 minutes
📋 Required Readings - All Students
📚 Essential Foundation - Everyone Reads These
Please complete all three readings below before class:
- 🏛️ U.S. Constitution Article I, Section 8, Clause 8 - The constitutional text (2 minutes)
- 📋 Copyright Office Circular 1: "Copyright Basics" (Pages 1-6) (~15 minutes)
- 📸 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60–61 (1884) – Oscar Wilde photograph case via Court Listener (Focus on pages 60–61 about creative control) (~10 minutes)
Why these are important: Constitutional foundation, basic copyright mechanics, and the key precedent on human creativity with technology.
Total reading time: About 27 minutes
🎯 Choose Your Focus Area - PICK ONE (~25 minutes)
🤖 Focus A: AI & Copyright (Choose this for cutting-edge tech issues)
- U.S. Copyright Office: AI Policy Guidance (Pages 1-10) - Free government publication
- Federal Register: AI Registration Guidance - Free government resource
- NPR: NYT v. OpenAI Overview - Free news article
Focus questions: Can AI be an "author"? How should we analyze human-AI collaboration?
📚 Focus B: Fair Use & Literary Parody (Choose this for literary applications)
- SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) – Free case law via Justia ("Wind Done Gone" parody case)
- Authors Alliance: Fair Use and Parody in Fiction - Free legal guide
Focus questions: When can you build on existing literature? What makes literary parody "transformative"?
⚖️ Focus C: Constitutional Issues (Choose this for legal theory/policy)
- Eldred v. Ashcroft, 537 U.S. 186 (2003) – Free Supreme Court case via Court Listener (copyright term extension)
- Copyright Office: "Copyright Beginnings" - Free government resource
- ARL Copyright Timeline - Free educational timeline
Focus questions: Are copyright terms really "limited"? How should we interpret constitutional purpose?
🔍 Additional Free Resources
📖 Free Case Law & Government Sources
- Court Listener: Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) – Free Supreme Court case (transformative parody)
- Court Listener: Burrow-Giles full text – Free legal database
- Copyright Act full text – Official government source
- Project Gutenberg – Public domain literature examples
🎯 Free Interactive & Educational Tools
- Stanford Fair Use & Copyright Center – Free educational resource
- Public Domain Calculator – Our modern, Flash-free copyright term tool
- Creative Commons License Guide – Free licensing education
- Copyright Office FAQ – Free official guidance
📊 We Built a Better Public Domain Calculator!
Fed up with Flash-based calculators that don't work anymore? We created a modern, mobile-friendly public domain calculator that works on all devices - no plugins required!
Try it now: danielle-teagarden.github.io/public-domain-calculator
- ✅ Works on phones, tablets, and computers
- ✅ No Flash or plugins needed
- ✅ Based on Cornell's authoritative copyright chart
- ✅ Open source and free forever
Created as part of our commitment to accessible legal education tools.
💡 Supporting Open Legal Access
Why Court Listener? This presentation prioritizes Court Listener and other resources from the Free Law Project – a non-profit dedicated to creating high-quality, open legal information. By using their platform, we support:
- Free access to justice - No paywalls for legal information
- Open legal data - APIs and bulk downloads for researchers
- Innovative legal tools - RECAP, SCALES, and other projects
- Sustainable funding model - Donations, not advertising or fees
Just as Public Sans represents open access to government design, Court Listener represents open access to legal information.
1. 🧠 Introduction to Intellectual Property: The Legal Landscape
Before diving into copyright specifics, let's understand the broader intellectual property ecosystem. We'll explore each type of protection through a storytelling lens, seeing how they evolved to meet different creative and business needs.
🗺️ The IP Landscape: A Roadmap
Four Types of Protection, Four Different Stories
Each type of intellectual property emerged to solve specific problems in protecting human creativity and innovation:
- 📜 Patents: The oldest - protecting inventions by requiring disclosure
- 🤐 Trade Secrets: The alternative - protecting through secrecy
- ™ Trademarks: The commercial - protecting brand identity in the marketplace
- 📄 Copyright: The expressive - protecting creative works and literature
- 🎭 Right of Publicity: The personal - protecting individual identity (especially strong in Indiana!)
Let's tell the story of each, and see how they work together and sometimes compete.
📜 The Patent Story: Disclosure for Protection
⚙️ Patents: "Teach the World, Get 20 Years"
The Deal: Inventors get temporary monopoly in exchange for teaching everyone how the invention works.
🎯 What Patents Protect:
- Inventions: Machines, processes, compositions of matter
- Requirements: Novel + non-obvious + useful
- Examples: Drug formulations, software algorithms, mechanical devices
⏰ The Patent Bargain:
- Duration: 20 years from filing
- Requirement: Full public disclosure of how it works
- Result: After 20 years, anyone can use the invention
- Authority: Federal law (35 U.S.C.) - Patent Office
Why 20 years? Enough time to recoup R&D investment, but not so long that innovation stagnates. The goal is to encourage disclosure, not create permanent monopolies.
🤐 The Trade Secret Story: Protection Through Secrecy
🔒 Trade Secrets: "Keep It Secret, Keep It Forever"
The Alternative Deal: Don't file for a patent - just keep it secret. You can have protection forever, but if anyone figures it out independently, you lose.
🎯 What Trade Secrets Protect:
- Confidential information: Formulas, processes, customer lists
- Requirements: Economic value + secrecy measures
- Classic Example: Coca-Cola formula (120+ years secret!)
⚖️ The Trade Secret Trade-off:
- Duration: Potentially forever
- Vulnerability: Lost if disclosed or independently discovered
- No filing required: Protection starts immediately
- Authority: State law (Uniform Trade Secrets Act)
Strategic Choice: Patent vs. Trade Secret? Coca-Cola chose secrecy over the 20-year patent limit. Google's search algorithm? Also secret.
™ The Trademark Story: Your Brand in the Marketplace
🏪 Trademarks: "Use It in Commerce, Keep It Forever"
The Commercial Deal: If you use a distinctive mark in commerce, you can protect it as long as you keep using it.
🎯 What Trademarks Protect:
- Brand identifiers: Words, logos, colors, sounds, even smells
- Purpose: Prevent consumer confusion in marketplace
- Examples: Nike swoosh, "Just Do It," McDonald's golden arches
♾️ The Trademark Advantage:
- Duration: Potentially forever (with continued use)
- Registration: Optional but helpful
- Scope: Only within relevant product/service categories
- Authority: Federal (Lanham Act) + state common law
The Forever Protection: Unlike patents and copyrights, trademarks don't expire. Coca-Cola has had trademark protection for over 130 years!
📄 The Copyright Story: Creative Expression Protected
✍️ Copyright: "Create It, Own It (For a Very Long Time)"
The Creative Deal: Write, compose, photograph, or otherwise create original expression, and you automatically get exclusive rights.
🎯 What Copyright Protects:
- Original expression: Books, songs, movies, photographs, software code
- Requirements: Originality + fixation in tangible form
- Automatic: No registration required (since 1989)
📅 The Copyright Timeline:
- Individual works: Life of author + 70 years
- Corporate works: 95 years from publication
- Anonymous/pseudonymous: 95 years from publication
- Authority: Federal law (17 U.S.C.)
The Focus of Our Course: Copyright is the IP most relevant to literature, journalism, and creative expression. It's also the most debated in terms of duration and scope.
🎭 The Right of Publicity Story: Indiana's Special Connection
⭐ Right of Publicity: "Your Image, Your Choice"
The Personal Deal: Your name, likeness, and persona have commercial value - and you control how they're used.
🎯 What Right of Publicity Protects:
- Personal identity: Name, likeness, voice, signature, persona
- Commercial use: Advertising, merchandise, endorsements
- Duration: Varies by state (life + up to 100 years)
- Authority: State law - no federal right of publicity
🌽 Why Indiana? The James Dean Factor
James Dean: Indiana's Most Famous Son
Born: February 8, 1931, Marion, Indiana
Raised: Fairmount, Indiana
Famous for: Rebel Without a Cause, East of Eden, Giant
Died: September 30, 1955 (age 24)
Legacy: Indiana protects his publicity rights posthumously
Indiana Code § 32-36: One of the strongest right of publicity statutes in the nation.
🌟 Indiana's Famous Personalities Protected by Right of Publicity:
🏀 Larry Bird
Basketball legend, Indiana State University
📺 David Letterman
Talk show host, born Indianapolis
James Dean
Actor, Fairmount (shown above)
💰 Why This Matters
Each of these Indiana natives' names and likenesses have commercial value. Without right of publicity protection, anyone could use Larry Bird to sell basketball shoes or David Letterman to advertise comedy shows without permission or payment.
Why might Indiana have developed such strong right of publicity laws?
Consider these possibilities (some are speculation - what do you think?):
- Economic incentive to attract entertainment industry?
- Protecting famous Hoosiers like James Dean, Larry Bird, David Letterman?
- General cultural emphasis on property rights and inheritance?
- Competition with California and New York entertainment law?
- Specific industry lobbying or case that prompted legislation?
- Something else entirely?
⚖️ Federal vs. State Law: Constitutional Structure & Supremacy
🏛️ Constitutional Framework: Why Federal Law Often Controls
The Supremacy Clause (Article VI) makes federal law supreme over state law when both apply to the same subject matter. Here's how this plays out in IP:
🇺🇸 Federal Authority & Preemption
- Copyright: Article I, § 8, cl. 8 ("Progress Clause")
- Patents: Same constitutional source
- Trademarks: Commerce Clause authority
- Copyright Preemption (§ 301): Preempts state laws protecting rights "equivalent" to copyright for fixed, original works
- Patent Preemption: Generally field preemption - federal law occupies the entire field
- Trademark Coexistence: State common law trademark rights can coexist with federal registration
🏠 State Authority (Not Preempted)
- Trade Secrets: Traditional state law domain
- Right of Publicity: State law protection
- Contract Law: Licensing agreements, NDAs
- Unfair Competition: State common law
- Common Law Trademarks: State protection for unregistered marks
- Unfixed Works: Live performances, speeches not reduced to tangible form
- Anti-Bootlegging Laws: State laws protecting live musical performances
🌟 Right of Publicity: Indiana's Cutting-Edge Approach
🏀 Why Indiana? From Larry Bird to Legal Leadership
Indiana isn't just the home of basketball—it's also a national leader in right of publicity law. The state recognized early that celebrity personas have economic value worth protecting.
📜 Indiana Code 32-36 (Right of Publicity Act)
What it protects: A person's name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms.
🔑 Key Features Making Indiana Law Strong:
- 100-year post-mortem protection - One of the longest in the nation
- Broad definition - Covers "personality" beyond just name/likeness
- Commercial use focus - Protects against unauthorized commercial exploitation
- Descendible rights - Can be inherited and transferred
- Registration system - Optional but provides additional protections
🎯 Practical Applications in Indiana:
🤝 How Right of Publicity Interacts with Copyright
📸 Scenario: Celebrity Photograph
- Copyright: Photographer owns copyright in the photo itself
- Right of Publicity: Celebrity controls commercial use of their likeness in the photo
- Result: Need permission from BOTH photographer AND celebrity for commercial use
🎬 Scenario: Documentary Film
- Copyright: Filmmaker owns copyright in the documentary
- Right of Publicity: Subjects may have rights in their personas as depicted
- First Amendment: May protect documentary use even without celebrity consent
⚖️ First Amendment Considerations
Right of publicity law must balance personality rights against free speech. Indiana courts recognize several important limitations:
- News reporting - Protected use of names/likenesses in journalism
- Artistic expression - Transformative use in art may be protected
- Commentary and criticism - Protected under fair comment doctrine
- Incidental use - Brief appearances may not trigger liability
Thinking Question: If Indiana passed a law saying that copyright in songs by Indiana artists lasts 200 years instead of the federal life+70 rule, would this law be constitutional? Why or why not?
⏱️ The Term Disparity: Why Copyright Lasts So Much Longer Than Patents
💰 The Economic Logic Problem
One of the most puzzling aspects of IP law is the dramatic difference in protection terms:
📊 Compare the Terms:
- Patents: 20 years from filing
- Copyright: Life of author + 70 years (or 95 years for corporate works)
- Reality check: A drug that costs $2.6 billion to develop gets 20 years; a poem written in an afternoon gets 120+ years
📖 Why This Disparity? An Honest Analysis
The truth is: We're not entirely sure, and it may not be logical. Here are the factors at play:
🏛️ Different Historical Development:
- Copyright: Evolved from printing monopolies and author's rights movements
- Patents: Developed from craft guilds and invention disclosure systems
- Different lobbying power: Entertainment industry vs. tech/pharma industries
💡 Possible Justifications (Though Debatable):
- Patents require disclosure: Inventors must teach the public how to make/use the invention
- Copyright works don't teach: Reading a novel doesn't teach you how to write one
- Different innovation cycles: Tech moves faster than literature?
- Cultural value: Stories may have longer cultural relevance than inventions
🎯 The Lobbying Reality
📖 Copyright Industries:
- Disney, Hollywood studios
- Publishing houses
- Music labels
- Strategy: Extend terms whenever Mickey Mouse approaches public domain
🔧 Patent Industries:
- Tech companies
- Pharmaceutical firms
- Manufacturing
- Strategy: Balance between protection and building on others' work
Consider these real examples:
- A pharmaceutical company spends 15 years and $2.6 billion developing a life-saving cancer drug → 20 years protection
- An author spends 2 years writing a romance novel → Life + 70 years protection
- A software developer creates a new algorithm in 6 months → 20 years if patented
- A photographer takes a sunset photo in 1/125th of a second → Life + 70 years protection
Questions for discussion:
- Does the effort or investment justify the protection length?
- Should "progress of science and useful arts" mean different terms for different works?
- Is this disparity constitutionally justified or just political reality?
2. 🏛️ Constitutional Foundation: Where It All Begins
🌍 Understanding the Public Domain
What is the Public Domain?
The public domain is the shared foundation of human knowledge and creativity. Just as we all freely use letters, numbers, language, and basic ideas, the public domain contains all creative works and knowledge that belong to everyone.
🏛️ Think of it as the "Public Square" of Ideas:
- Basic building blocks: Letters, numbers, words, concepts, facts, ideas
- Expired works: Shakespeare's plays, Beethoven's symphonies, ancient texts
- Never protected: Mathematical formulas, scientific principles, historical facts
- Government works: Federal publications, laws, judicial opinions
- Freely given: Works intentionally dedicated by creators
The public domain is where all creativity begins and eventually returns. It's not the absence of copyright—it's the presence of freedom.
🇺🇸 U.S. Constitution Article I, Section 8, Clause 8 - The Copyright Clause
"The Congress shall have Power... 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"
🎯 Constitutional Framework Analysis
PURPOSE: Why Copyright Exists
- "Promote Progress" - Public benefit is the goal
- "Science and useful Arts" - Knowledge advancement
- Economic incentive - Creators get temporary monopoly
- Public domain end game - Works eventually become free
LIMITS: Constitutional Boundaries
- "Authors" - Human creators (traditional view)
- "Writings" - Tangible expression required
- "Limited Times" - Not perpetual protection
- Federal power only - States can't extend terms
📚 Historical Context: Why the Framers Cared
🎭 The Framers' Economic & Cultural Understanding
The Framers lived through the Enlightenment - they understood that knowledge builds on knowledge. They designed copyright with specific economic and cultural goals:
🏛️ Why "Limited Times" Was Essential:
- Knowledge accumulation: Isaac Newton said "standing on shoulders of giants" - creativity builds on prior works
- Economic theory: Monopolies are generally harmful - only justified by temporary incentive need
- Democratic values: Information and culture should ultimately belong to the people
- Innovation cycles: Old ideas becoming free fuel new creativity
🏛️ The Framers' Public Domain Vision
The public domain wasn't an afterthought - it was the whole point. The Framers saw temporary exclusive rights as the price society pays to eventually get works for free.
📚 What They Envisioned:
- Educational access: Eventually all books become free for schools
- Cultural building blocks: Stories become raw material for new creativity
- Democratic knowledge: Information belongs to the people, not perpetual owners
- Innovation cycles: Each generation builds on the last
Examples they'd recognize: Shakespeare's works (public domain) → countless adaptations. Biblical stories (public domain) → endless retellings. Folk tales (public domain) → Disney's early success!
📖 Why This Matters for Literature
📚 Literature's Special Relationship with Public Domain
The Framers understood that literature especially benefits from a robust public domain:
🎭 Creative Building Blocks:
- Retelling stories: Romeo & Juliet → West Side Story → countless other adaptations
- Character archetypes: Sherlock Holmes → modern detective stories
- Genre conventions: Gothic novels → modern horror
- Cultural references: Shared stories create common understanding
📚 Educational & Democratic Access:
- Free textbooks: Classic literature costs nothing to reproduce
- Cultural literacy: Everyone can access foundational works
- Translation & adaptation: Works can be freely adapted for new audiences
- Academic study: No permission needed for scholarly analysis
Current problem: If copyright terms keep extending, we lose this constitutional benefit. The Framers' vision of cycling creativity gets broken.
Think about this: If the Constitution's purpose is to "promote progress," how should that guide our analysis of modern copyright disputes? When courts decide cases about AI, fan fiction, or digital libraries, should they ask "What promotes progress?" before applying technical rules?
🐭 Constitutional Challenge: The "Limited Times" Problem
⚖️ Eldred v. Ashcroft (2003) - The Mickey Mouse Protection Act
The Problem: Congress keeps extending copyright terms. The Constitution says "limited Times" - but if you keep extending them, are they really limited?
📈 The Extension Pattern:
- Added 20 years to ALL existing copyrights not yet expired
- Prospective works: Life + 50 became Life + 70
- Corporate works: 75 years became 95 years
- Retroactive effect: Applied to works already created and under copyright
- Scope: Largest blanket extension in U.S. history
The Mickey Mouse Factor: Each extension came just as Disney's early Mickey Mouse cartoons were about to enter public domain. Coincidence? 🤔
⚖️ Supreme Court's Troubling Analysis
Eldred Challenge: Plaintiffs argued repeated retroactive extensions violate "limited Times" requirement.
Supreme Court (7-2): Upheld extensions. Said Congress has broad power to set copyright terms as long as they're not literally "unlimited."
🎯 Constitutional Problems with the Court's Logic:
- "Limited" becomes meaningless: If you can always extend, what's the limit?
- Ignores "promote progress" purpose: How does retroactive extension incentivize creation?
- Defeats public domain: Works never actually enter the commons
- Favors corporate interests: Over constitutional purpose
Justice Breyer's Dissent: "The economic effect of this 20-year extension—the longest blanket extension since the Nation's founding—is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors."
The Social Contract Fulfilled: Disney's "Steamboat Willie" (1928) entered the public domain on January 1, 2024! This represents a rare success story of the copyright system working as intended.
🎵 The Steamboat Willie Story
- Created: 1928 by Walt Disney Studios
- Featured Music: "Steamboat Bill" (1910 song by Arthur Collins)
- Legal Foundation: Disney relied on copyright law when creating this work
- The Social Contract: Disney got protection under the law in effect at the time—originally 28 years with renewal option
- Extensions Received: Benefited from every major copyright extension since 1928
- Final Status: Public domain as of January 1, 2024 (only the 1928 version—modern Mickey still protected)
Steamboat Willie Timeline
Constitutional Questions for Discussion:
- Was it fair to extend copyright multiple times for works created under shorter terms?
- How does the "social contract" theory apply—should creators rely on the law when they create?
- Why is only the 1928 version public domain while modern Mickey remains protected?
- Should Congress have the power to repeatedly extend copyright terms?
⚖️ Why "Lead with the Law" Matters
🎯 The Constitutional Anchor Method
Eldred shows what happens when courts drift from constitutional text. When analyzing any copyright issue:
- Start with Constitution: Does this serve "promoting progress" AND respect "limited Times"?
- Check the statute: What did Congress actually write?
- Then look at cases: Are courts staying faithful to the law?
- Policy arguments: What outcome best serves constitutional purpose?
Courts sometimes drift from constitutional/statutory foundations - anchor your analysis in the actual law first.
2. 🌍 International Copyright: Treaties & Comparative Approaches
While the U.S. grounds copyright in its Constitution, most of the world follows an international treaty framework. Understanding these differences is crucial for authors, publishers, and lawyers in our globalized world.
📜 The Berne Convention: Foundation of International Copyright
🇨🇭 Origins in Berne, Switzerland (1886)
The problem it solved: In the 19th century, authors had no protection outside their home country. Charles Dickens's novels were pirated freely in America. French plays were performed in Germany without payment.
🎯 Core Principles of Berne:
- National treatment: Foreign authors get same rights as domestic authors
- Automatic protection: No registration or © notice required
- Minimum standards: All member countries must provide baseline protections
- Independence: Copyright in one country doesn't depend on protection in origin country
Current status: 181 countries are members. The U.S. was a notable holdout, not joining until 1989!
🇺🇸 Why the U.S. Resisted Berne for 103 Years
- Registration requirement: U.S. required © notice and registration - Berne forbids this
- Moral rights: Berne requires moral rights (see below) - U.S. tradition focuses on economic rights
- Formalities: U.S. loved formalities (deposit copies, renewal) - Berne prohibits them
- Publishing industry: U.S. publishers benefited from freely reprinting foreign works
What changed? By 1980s, U.S. became net exporter of copyrighted works (Hollywood, software). Suddenly, international protection mattered!
🎨 Moral Rights (Droit Moral): The Great Divide
📖 Article 6bis of Berne - Moral Rights
"Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."
🇪🇺 Continental European Approach
- Philosophy: Author's personality infused in work
- Rights are: Perpetual, inalienable, unwaivable
- Two key rights:
- Attribution (paternity)
- Integrity (against distortion)
- Cannot sell: Even if you sell copyright, retain moral rights
🇺🇸 U.S. Approach
- Philosophy: Copyright as economic commodity
- Limited recognition: Only visual artists (VARA)
- Can waive: Authors can contract away rights
- Work-for-hire: No moral rights at all
- Alternative protection: Trademark, unfair competition
🌍 Do US Creators Have Moral Rights? The Complex Answer
- In the US: Very limited - only visual artists under VARA (Visual Artists Rights Act)
- When exploited abroad: Yes! US creators get moral rights protection in Berne countries
- Where rights arise: Rights are determined by the country where protection is sought, not where created
- Example: A US photographer's work published in France gets French moral rights protection in France
- Practical tip: US creators should understand moral rights when licensing internationally
🇫🇷 France: Huston v. La Cinq (1991)
John Huston's heirs successfully blocked colorization of "The Asphalt Jungle" in France, even though the U.S. studio owned copyright. French court: moral rights survive death and can't be waived.
🇬🇧 UK: George Michael v. Sony (1994)
Michael claimed artistic integrity rights against record label. UK recognizes moral rights but allows contractual waiver. Case settled - showing tension between rights and commerce.
🇨🇦 Canada: Snow v. Eaton Centre (1982)
Artist successfully stopped mall from decorating his sculpture with Christmas ribbons. Court: violated integrity right by making work look "ridiculous."
🇺🇸 US: Gilliam v. ABC (1976)
Monty Python sued ABC for cutting sketches. Won on contract/trademark, NOT moral rights. Shows how U.S. achieves similar results without moral rights doctrine.
🌏 Comparative Copyright Terms: A World Tour
📊 How Different Countries Balance Protection vs. Public Domain
| Country/Region | Standard Term | Interesting Features |
|---|---|---|
| 🇲🇽 Mexico | Life + 100 years | Longest in world! Strong author rights tradition |
| 🇪🇺 EU | Life + 70 years | Harmonized in 1993; includes moral rights |
| 🇨🇦 Canada | Life + 70 years | Recently extended from 50; has moral rights |
| 🇯🇵 Japan | Life + 70 years | Extended from 50 in 2018; strong moral rights |
| 🇨🇳 China | Life + 50 years | Berne minimum; rapid modernization of IP law |
| 🇳🇿 New Zealand | Life + 50 years | Resisted extension; values public domain |
Think about it: Every country listed above uses "Life PLUS" terms instead of just "Life." Why do you think that is?
Discussion Questions:
- Why "Life Plus" at all? Why not just protect works during the author's lifetime?
- Would you include the "Plus"? If you were designing a copyright system, would you add years after death?
- Whose interests does "Plus" serve? Authors? Heirs? Publishers? Society?
- Does it incentivize creation? Do authors really think about what happens 70 years after they die?
🎭 Fascinating International Differences
🇩🇪 Germany: "Urheberrecht" (Author's Right)
- Philosophy: Copyright inalienable from author
- No work-for-hire: Employees retain copyright!
- Moral rights: Cannot be waived, ever
- "Monist" system: Economic and moral rights unified
🇫🇷 France: "Droit d'Auteur"
- "Droit de suite": Artists get cut of resales
- Perpetual moral rights: Heirs can enforce forever
- Special rules: Government employee works not public domain
- Strong collective management: Mandatory for some uses
🇬🇧 UK: Common Law + Moral Rights
- Crown copyright: Government works protected 50 years
- Database right: Separate 15-year protection
- Fair dealing: More limited than U.S. fair use
- Moral rights: But can be waived by contract
🇮🇳 India: Unique Provisions
- Moral rights: Extend beyond author's death
- Special provisions: For folklore and traditional knowledge
- Government works: 60 years from publication
- Version rights: Separate rights for translations
Scenario: A U.S. author writes a novel. Publisher wants to:
- Change the ending for the movie
- Remove author's name from a "simplified" version
- License it for AI training
- Create merchandise without attribution
Task: How would this play out in the U.S. vs. France vs. Germany? Which system better balances author rights vs. commercial needs?
💡 Key Takeaways for U.S. Practitioners
- Contracts matter more internationally: Must address moral rights explicitly
- Work-for-hire doesn't translate: May not own employee works abroad
- Registration not required: But still useful in U.S. for litigation benefits
- Public domain dates vary: Work may be protected in one country, free in another
- Choice of law crucial: Specify which country's law governs
3. 🗺️ Intellectual Property Landscape
🎯 The Four Main Types of IP Protection
📜 Copyright
- Protects: Creative expression
- Duration: Life + 70 years (individuals) / 95 years (corporate)
- Automatic: Upon fixation in tangible form
- Examples: Books, poems, songs, articles
- Constitutional basis: "Authors" and "Writings"
🔬 Patents
- Protects: Functional inventions
- Duration: 20 years from filing
- Requirements: Novel, non-obvious, useful
- Examples: Machines, processes, drugs
- Constitutional basis: "Inventors" and "Discoveries"
™️ Trademarks
- Protects: Brand identifiers
- Duration: Renewable forever
- Purpose: Prevent consumer confusion
- Examples: Nike swoosh, Coca-Cola, Harry Potter
- Constitutional basis: Commerce Clause
🤫 Trade Secrets
- Protects: Confidential business information
- Duration: While kept secret
- Requirements: Economic value, secrecy efforts
- Examples: Coca-Cola formula, customer lists
- Constitutional basis: State law primarily
🐧 Real-World Example: Penguin Random House
📚 How One Publisher Uses All Four IP Types
Used under trademark fair use for educational analysis
Distinctive orange design scheme
🔒 Trademark Protection:
- Logo: Penguin figure design
- Wordmark: "Penguin" name
- Trade dress: Orange Classics design
- Purpose: Brand recognition, prevent confusion
📚 Copyright Protection:
- Book covers: Artistic designs, layouts
- Typography: Custom font designs
- Anthologies: Selection and arrangement
- Marketing copy: Book descriptions, blurbs
⚙️ Patent Protection:
- Printing technology: Binding methods
- Digital systems: E-reader software
- Distribution: Inventory algorithms
- Publishing tools: Editorial software
🤫 Trade Secrets:
- Editorial criteria: Book selection process
- Marketing data: Customer analytics
- Pricing strategies: Market positioning
- Distribution networks: Supplier relationships
Key insight: Same company, same products, but different IP types protect different aspects of the business.
🤔 The Duration Puzzle: Why Such Different Terms?
📊 The Dramatic Disparity
Patents: 20 years maximum, no extensions
Copyright: Life + 70 years (potentially 150+ years total)
The Logic Problem:
💰 Investment vs. Protection Examples:
- New cancer drug: $2.6 billion R&D + 15 years development → 20 years protection (maybe 5-10 years actual market exclusivity after FDA approval)
- Romance novel: 2 years writing + $0 R&D → Life + 70 years (potentially 120+ years protection)
- Mickey Mouse cartoon (1928): Months to create → 97+ years protection and counting
🎭 Industry Lobbying vs. Economic Logic
💡 Why the Disparity? Honest Analysis
Traditional explanations don't hold up to scrutiny. The real reasons may be:
🏛️ Possible Historical/Legal Reasons:
- Different constitutional purposes: Patents require disclosure of how inventions work (public benefit); copyrighted works don't "teach" creation
- Different legal traditions: Copyright and patent law developed along separate tracks
- Different constitutional language: Same clause, but different words ("Writings" vs. "Discoveries")
💰 Industry Politics Reality:
- Copyright industries (Hollywood, Disney): Powerful lobbying for extensions - old content still profitable
- Patent industries (tech, pharma): Want to build on prior art quickly - longer patents would stifle innovation
- Consumer understanding: People relate to Mickey Mouse; don't sympathize with "patent trolls"
- Political reality: Different industries, different lobbying power
Consider these real examples:
💊 Pharmaceutical R&D:
- 15+ years development
- $2.6 billion average cost
- High failure rate
- Saves lives
- Gets: 20 years protection
🎭 Entertainment Content:
- Months to years creation
- Much lower costs
- Lower risk
- Entertainment value
- Gets: Life + 70 years
Questions: Does this make economic sense? How would you design IP terms if starting from scratch? Is this about constitutional differences or lobbying power?
📚 IP in Literature & Publishing
🎭 Literary Work IP Layers
Example: Harry Potter series
- Copyright: The text of the books, characters, plot
- Trademark: "Harry Potter" name, character names, Hogwarts
- Trade Secrets: Unpublished manuscripts, plot developments
- Patents: Potentially special printing processes or digital formats
Most literary works get multiple layers of IP protection
Scenario: A bestselling author creates a fantasy world with:
- Unique magical creatures and their detailed biology
- An invented language with grammar rules
- Distinctive place names and geography
- A complex magic system with specific rules
- Character names that become popular brands
Question: What type of IP protection applies to each element? Can you get multiple types of protection for the same creative work?
🎯 Why Focus on Copyright for Literature?
📚 Copyright as Literature's Primary Protection
While authors might get trademark protection for character names or trade secret protection for unpublished works, copyright is the main protection for literary expression. It covers:
- The actual text and structure of works
- Character development and distinctive traits
- Plot elements and narrative techniques
- Dialogue and unique voice
- Adaptations and derivative works
4. 📖 Copyright Fundamentals: The Statutory Framework
🏛️ 17 U.S.C. § 102(a) – What Gets Copyright Protection
"Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."
(17 U.S.C. § 102(a))
🔑 Three Requirements for Copyright Protection
1️⃣ Originality
- Low bar: Just need "minimal creativity"
- Independent creation: Don't need to be first
- No copying: Must come from author
- Example: Phone book = no creativity; poetry anthology selection = creative
2️⃣ Work of Authorship
- Literary works
- Musical works
- Dramatic works
- Pictorial/graphic works
- Motion pictures
- Sound recordings
- Architectural works
3️⃣ Fixation
- Tangible medium: Paper, digital file, recording
- Perceptible: Can be seen, heard, or read
- More than transitory: Must last more than briefly
- Machine aid OK: Congress anticipated technology!
📋 17 U.S.C. § 106 - The Exclusive Rights Bundle
Copyright owners get six exclusive rights:
- Reproduction - Making copies (photocopying, downloading)
- Distribution - Selling, giving away, or publicly sharing copies
- Public Performance - Reading aloud, performing plays, streaming
- Public Display - Showing artwork, posting text online
- Derivative Works - Adaptations, translations, sequels, films
- Digital Audio Transmission - Streaming music services
⏰ How Long Does Copyright Last?
👤 Individual Authors
- Duration: Life of author + 70 years
- Joint works: Life of last surviving author + 70
- Anonymous/pseudonymous: 95 years from publication
- Example: Toni Morrison died 2019 → her works protected until 2089
🏢 Corporate/Work for Hire
- Duration: 95 years from publication OR 120 years from creation
- Whichever is shorter
- Example: Corporate training manual published 2024 → protected until 2119
🏛️ Exception: U.S. Government Works & The Public Domain
📜 17 U.S.C. § 105 - The Government Works Exception
The Law: "Copyright protection under this title is not available for any work of the United States Government"
🎯 What This Means:
- No copyright in federal works: Works created by federal employees within scope of employment
- Immediate public domain: No waiting period - free from moment of creation
- Democratic principle: Taxpayers paid for it, taxpayers own it
- BUT: Only applies to federal government (states can claim copyright)
✅ In Public Domain:
- Federal statutes & regulations
- Congressional reports
- Federal court opinions
- NASA photos
- Military manuals
- Public Sans typeface
❌ May Have Copyright:
- State government works
- Works by contractors
- Works with federal funding (grants)
- Foreign government works
- Government-commissioned works
🔤 Case Study: Public Sans
Public Sans is a perfect example of § 105 in action:
- Created by: U.S. Web Design System (federal employees)
- Purpose: Accessible, readable typeface for government websites
- Copyright status: Public domain from creation
- Result: Anyone can use, modify, distribute without permission
Why this matters: Private companies charge thousands for font licenses. The federal government created a professional-quality typeface and gave it away free - demonstrating the public benefit of § 105.
Consider this common scenario:
- Trial attorney writes brilliant argument in brief (has copyright)
- Trial judge quotes the brief verbatim in order (no copyright - § 105)
- Appellate court quotes the trial order in opinion (no copyright)
- Next litigant quotes appellate opinion, citing only the court
This is fair use at its finest! Let's analyze why using the four factors:
⚖️ The Four Fair Use Factors (17 U.S.C. § 107):
1️⃣ Purpose and Character of Use
- Judge's use: Official governmental function
- Transformative? Yes - converting advocacy into law
- Commercial? No - purely public purpose
- Result: Strongly favors fair use ✅
2️⃣ Nature of the Copyrighted Work
- Type: Legal argument (more factual/analytical than creative)
- Published? Yes - filed publicly with court
- Purpose: Written to persuade the court
- Result: Favors fair use ✅
3️⃣ Amount and Substantiality Used
- How much? Could be entire paragraphs
- But: Only what's necessary for judicial decision
- Purpose: Need complete argument for legal reasoning
- Result: Neutral to favorable ✅
4️⃣ Effect on Market for Original
- Market harm? None - briefs aren't sold
- Actually helps: Attorney's arguments becoming law enhances reputation
- No licensing market: Can't license briefs to judges
- Result: Strongly favors fair use ✅
🎯 Why This System Works Brilliantly
The legal system depends on free flow of arguments:
- Democratic access: Law must be freely available to all
- Building precedent: Legal reasoning builds on prior arguments
- Efficiency: Judges can adopt good arguments without copyright concerns
- Professional incentive: Lawyers want their arguments adopted as law
The beauty of the system: When a judge adopts your argument, you've won the ultimate professional victory - your words become law. Attribution would actually diminish this by suggesting it's still "just" the lawyer's opinion rather than judicial ruling.
Apply the four factors to these scenarios:
- Law professor includes attorney's brief excerpts in casebook
- Westlaw includes brief in commercial database
- Opposing counsel quotes your brief against you
- Journalist quotes brief in news story about case
For each scenario, analyze: Which factors favor fair use? Which don't? What's the likely outcome?
🎵 Music & Technology: The Piano Roll Revolution
🎹 The Multiple Layers of Music Copyright
Music demonstrates copyright's complexity perfectly. Consider this historical progression:
📜 The Piano Roll Chain of Creation (1900s):
1. Composer
Writes sheet music → Gets copyright in musical work
2. Performer
Plays the piece → No federal protection (until 1972)
3. Piano Roll Maker
Mechanically records → Creates physical object
4. Supreme Court (1908)
White-Smith v. Apollo → Piano rolls aren't "copies"
5. Congress (1909)
Copyright Act response → Creates mechanical license
6. Modern Era
Digitization → Historic piano rolls preserved digitally
🛒 First Sale Doctrine: The Blockbuster Mystery
🎬 Why Blockbuster Existed But Tower Records Couldn't Rent CDs
The First Sale Doctrine (17 U.S.C. § 109): Once you lawfully acquire a copy, you can resell, lend, or give it away without permission from the copyright owner.
🎥 Movies: Rental Allowed
- First sale doctrine applies
- Buy a DVD → Can rent it out
- Movie studios tried to ban rentals
- Failed in Congress
- Result: Blockbuster, Netflix, Redbox
🎵 Music: Rental Prohibited
- Record Rental Amendment of 1984
- Specifically prohibits commercial CD/record rental
- Music industry lobbied successfully
- Concern: Easy home copying
- Exception: Libraries can still lend
🤔 The Policy Question
Same first sale doctrine, different rules. Why could you rent "Titanic" but not the Celine Dion soundtrack? Is this about piracy concerns, industry lobbying power, or legitimate policy differences?
📚 How Libraries Work Under Copyright
🏛️ Libraries: Where Copyright Meets Public Access
📖 Physical Books
- First sale doctrine: Buy once, lend forever
- No limits on circulation numbers
- Can lend books, CDs, DVDs
- Wear and tear: Natural limit on copies
- Section 108: Special library privileges for preservation
💻 Digital Items
- Licensed, not owned: No first sale rights
- Publishers control: Simultaneous users
- Artificial scarcity: "Copies" that expire after X loans
- Higher costs: E-books often cost libraries more than physical
- Platform dependence: Lose access if vendor disappears
⚠️ The Digital Divide Problem
Same content, different rules: A library can buy one physical copy of a bestseller and lend it forever to infinite patrons (one at a time). But the same book in digital format might cost 3x more, expire after 50 loans, and be limited to 2 simultaneous users.
Policy question: Should digital first sale rights exist? Or do the fundamental economics of digital goods justify different treatment?
📊 Economics of Digital Goods: Why Everything Changes
📚 Physical Goods
- Rivalrous: Your use prevents mine
- Marginal cost: Paper, ink, shipping
- Degradation: Books wear out
- Natural scarcity: One copy = one user
💻 Digital Goods
- Non-rivalrous: We can both use the same file
- Zero marginal cost: Perfect copies, instantly
- No degradation: Perfect quality forever
- Artificial scarcity: DRM creates limitations
🔥 The Core Problem: Zero Marginal Cost
Once created, a digital file can be copied and distributed essentially for free, to unlimited users, without degrading the original. This breaks traditional scarcity-based economics.
😰 Publisher Response: Artificial Scarcity
Since digital goods naturally have no scarcity, publishers create artificial limitations through DRM, licensing restrictions, and "expiring" downloads to maintain traditional pricing models.
🤔 The Policy Question
Should copyright law embrace the economics of abundance (zero marginal cost) or should it allow artificial scarcity to preserve traditional business models?
Scenario: A student writes Harry Potter fan fiction and:
- Posts it on a fan fiction website
- Records herself reading it as a podcast
- Creates artwork based on scenes
- Translates it into Spanish
- Sells printed copies at comic conventions
Question: Which of the six exclusive rights from § 106 does each activity potentially implicate?
4. 💡 Idea vs. Expression: The Heart of Copyright
📜 17 U.S.C. § 102(b) - What Copyright Does NOT Protect
"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
🎯 The Fundamental Distinction
❌ IDEAS (Not Protected)
- Basic concepts: Love triangle, revenge story
- General themes: Good vs. evil, coming of age
- Historical facts: Napoleon invaded Russia
- Scientific principles: Theory of relativity
- Common plots: Hero's journey structure
- Abstract concepts: Justice, freedom, democracy
✅ EXPRESSION (Protected)
- Specific character development: Hermione's particular traits
- Unique plot details: How the love triangle plays out
- Particular dialogue: "Frankly my dear, I don't give a damn"
- Distinctive style: Stream of consciousness narrative
- Original metaphors: "All the world's a stage"
- Specific word choices: How author describes the sunset
📚 Visual Example: Same Story, Different Expressions
📖 Original Expression
Setting: Medieval Verona
Families: Capulets vs. Montagues
Language: Elizabethan English
Ending: Poison
from feuding families
🎵 New Expression
Setting: 1950s New York
Groups: Jets vs. Sharks
Language: Modern English + Music
Ending: Guns
💡 Copyright Principle
The idea (tragic love story) cannot be copyrighted, but each expression creates its own copyright protection
📚 Literary Examples of Idea vs. Expression
🎭 Classic Literature Examples
Romeo & Juliet vs. West Side Story:
- Shared IDEA: Star-crossed lovers from feuding families
- Different EXPRESSION: Medieval Italy vs. 1950s NYC; Capulets/Montagues vs. Jets/Sharks; balcony scene vs. fire escape; poison vs. guns
- Result: Both works separately copyrightable
Zombie Apocalypse Stories:
- Shared IDEA: Undead plague threatens humanity
- Different EXPRESSIONS: Walking Dead vs. World War Z vs. Shaun of the Dead
- Result: Genre conventions don't prevent copyright
⚖️ Scenes à Faire: When Expression Becomes Unprotectable
🎬 The "Scenes à Faire" Doctrine
Definition: Scenes that must be done - expressions so common to a genre/setting that they're treated like ideas.
Examples in Literature:
- Detective stories: Crime scene investigation, red herrings, final revelation
- Romance novels: Meet-cute, misunderstanding, happy ending
- Spy thrillers: Gadgets, double agents, exotic locations
- Fantasy: Chosen one, magic mentor, dark lord villain
Legal rule: You can't copyright the general pattern, but you can copyright your specific, creative take on it.
🔄 The Merger Doctrine
⚖️ When Ideas and Expression "Merge"
Rule: When there are very few ways to express an idea, the idea and expression "merge" and copyright protection is denied.
Literary Examples:
- Simple recipes: "Boil water, add pasta" (only one way to say it)
- Basic instructions: "Turn left at the stop sign"
- Short phrases: "Just Do It" (too minimal for copyright)
- Mathematical formulas: E=mc² (only one way to express)
But: Creative recipe descriptions, elaborate instructions, and longer works get protection even if they contain unprotectable elements.
Analyze These Scenarios:
- Vampire Romance: Young woman falls for mysterious vampire who sparkles in sunlight
- Post-Apocalyptic Tale: Teenagers fight in televised death match to entertain oppressive government
- Wizard School: Orphaned child discovers magical powers, attends boarding school, fights dark wizard
- Time Travel: Scientist accidentally changes past, must fix timeline
Questions: What's the unprotectable idea? What could be protectable expression? What elements might be scenes à faire?
🎭 Why This Matters for Literature
📖 The Balance: Innovation vs. Protection
The idea/expression distinction ensures that:
- Authors can build on existing genres without infringement
- No one can monopolize basic storytelling concepts
- Creative expression gets protection while leaving room for innovation
- Cultural conversations can continue through different creative takes
This is how we get Romeo & Juliet, West Side Story, AND The Lion King (based on Hamlet) - all variations on classic themes with different expressions. Each draws from public domain works but creates new copyrightable expression. Fun fact: The Lion King II: Simba's Pride does parallel Romeo & Juliet!
5. 📚 Fair Use in Literary Context
📰 Visual Example: Fair Use in Academic Context
Likely fair use
Likely fair use
📜 17 U.S.C. § 107 - Fair Use Four Factors
"The fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—"
- Purpose and character of use (commercial vs. educational; transformative?)
- Nature of the copyrighted work (creative vs. factual; published vs. unpublished)
- Amount and substantiality (how much was used; was it the "heart"?)
- Effect on the market (does it hurt sales or substitute for original?)
⚖️ Literary Fair Use Success Stories
📖 SunTrust Bank v. Houghton Mifflin (2001) - "The Wind Done Gone"
Facts: Alice Randall wrote "The Wind Done Gone" - Gone with the Wind retold from enslaved people's perspective, critiquing the original's racist portrayal.
Four Factor Analysis:
- Factor 1 (Purpose): ✅ Transformative - critical commentary on racism in original
- Factor 2 (Nature): ➖ Original was published creative work
- Factor 3 (Amount): ➖ Used substantial portions, but necessarily for critique
- Factor 4 (Market): ✅ Different audience, doesn't substitute for original
Holding: Fair use - transformation through critical perspective overcame other factors. Court lifted initial injunction as "prior restraint."
📚 Literary Parody vs. Satire: The Dr. Seuss Cases
Successful Parody: Seuss v. ComicMix (2020) - "Who's Holiday"
Adult play featuring grown-up Cindy-Lou Who critiquing the original Grinch story = fair use
Failed "Parody": Dr. Seuss v. Penguin Books (1997) - "Cat NOT in the Hat"
O.J. Simpson trial told in Seuss style ≠ parody (criticized trial, not Seuss) = infringement
🎯 Key Distinction:
- Parody: Must comment on/criticize the original work itself
- Satire: Uses original work to comment on something else entirely
- Legal difference: Parody gets stronger fair use protection
🎵 Campbell v. Acuff-Rose Music (1994) - The Transformative Test
Key Legal Principle: Even though this involved music (2 Live Crew's parody of "Oh, Pretty Woman"), it established the transformative use test that applies to all fair use, including literature.
Supreme Court Rule: Fair use depends on whether new work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."
🎭 Common Literary Fair Use Scenarios
✅ Likely Fair Use
- Academic criticism: Quoting passages for literary analysis
- Parody/satire: Mocking style or content of original
- News reporting: Quoting from new book for review
- Educational use: Excerpts in course materials
- Transformative adaptation: Critical retelling from different perspective
❌ Likely NOT Fair Use
- Complete reproduction: Posting entire novel online
- Commercial substitution: "Cliffs Notes" without permission
- Non-transformative fan fiction: Same characters, extending plot
- Anthologies: Collecting works without commentary
- Translation for profit: Without transformative purpose
📖 Fan Fiction: The Gray Area
🎭 Fan Fiction Fair Use Analysis
Fan fiction exists in a complex fair use space:
More Likely Fair Use:
- Transformative perspective: Retelling from minor character's POV
- Critical commentary: Addressing problematic elements of original
- Different genre: Turning romance into thriller
- Non-commercial: Posted free on fan sites
Less Likely Fair Use:
- Simple continuation: "What happens next" without transformation
- Commercial exploitation: Selling fan fiction
- Substantial copying: Using exact dialogue/scenes extensively
- Market harm: Competing with official sequels
Scenario: Literature professor creates study guides for contemporary novels, including:
- Chapter summaries with key quotes
- Character analysis with textual evidence
- Theme discussions with supporting passages
- Historical context and literary criticism
She sells these guides to students for $10 each.
Task: Analyze using all four fair use factors. Is this fair use?
6. 🤖 Technology & Authorship: From Photography to AI
📸 The Foundation: Burrow-Giles v. Sarony (1884)
The Photograph at Issue
Subject: Oscar Wilde (1882)
Photographer: Napoleon Sarony
Case: Burrow-Giles v. Sarony (1884)
⚖️ The First Photography Copyright Case
🤔 The Big Question
"Is photography just mechanical copying, or can it be creative authorship worthy of copyright protection?"
📷 "Just Mechanical"
Camera does all the work
No human creativity
Mere reproduction
🎨 "Creative Authorship"
Pose, lighting, composition
Artistic choices
Original expression
🏆 Supreme Court Decision
Photography CAN be copyrightable when photographer exercises creative control over pose, lighting, expression, costume, and arrangement.
🔮 Precedent for the Future
This 1884 case established the framework we still use today to determine if AI-generated content can be copyrighted
🎭 The Oscar Wilde Photograph Case
The Challenge: Can a photograph be copyrighted when it's just "mechanical reproduction"?
🎨 Napoleon Sarony's Creative Control:
- "Posing the said Oscar Wilde in front of the camera"
- "Selecting and arranging the costume, draperies, and other various accessories"
- "Arranging the subject so as to present graceful outlines"
- "Arranging and disposing the light and shade"
- "Suggesting and evoking the desired expression"
Supreme Court Holding: Human creative control over machine output = authorship. The camera was just a tool executing Sarony's artistic vision.
Key Principle: Technology assistance doesn't negate human authorship when human exercises creative control.
⚙️ Historical Context: Technology & Creative Expression
Original "machine aid"
Mechanical writing tool
Digital authoring platform
🚀 1976 Copyright Act: Congress Embraced Technology
🔧 17 U.S.C. § 102(a) - "Aid of a Machine or Device"
"...fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."
Congressional Intent:
- "Now known or later developed" - Future-proofing for new technology
- "Aid of a machine" - Technology assistance is explicitly anticipated
- Focus on authorship, not on method of creation
🏺 Modern Example: Dale Chihuly's Glass Art
⚖️ Moi v. Chihuly (2019) - Creative Direction as Authorship
Facts: Dale Chihuly can no longer physically blow glass due to injury. Assistants do all hands-on work. Assistant sued claiming co-authorship.
Court's Analysis:
- Creative Control Test: "Chihuly possessed and exercised control over the creative process"
- Vision & Direction: He was "the sole visionary behind the work"
- Supervisory Role: "More choreographer than dancer, more director than actor"
- Final Authority: Chihuly controlled final artistic decisions
Holding: Creative direction and control, not physical execution, determines authorship.
📝 Work Made for Hire: When Others Create
👥 17 U.S.C. § 101 - Work Made for Hire Definition
Two categories:
- Employee works: Work created by employee within scope of employment
- Commissioned works: Specially ordered/commissioned works in specific categories (with written agreement)
Key point: The hiring party, not the actual creator, is considered the "author"
📚 Publishing House Example
- Staff writer creates articles → Publishing house owns copyright
- In-house editor substantially rewrites → Company authorship
- Freelance writer on assignment → Usually retains copyright unless work-for-hire agreement
🎭 Creative Team Example
- Film studio employs screenwriters → Studio owns scripts
- Ad agency creates campaigns → Agency owns creative work
- Ghost writer with contract → Hiring party typically owns copyright
Scenarios to Consider:
- Documentary filmmaker sets up 12 cameras to automatically record wildlife over 6 months, then selects/edits best footage
- Composer writes detailed sheet music but can't play instruments, hires orchestra to perform and record
- Architect designs building but construction workers build it
- Author dictates novel to assistant due to disability
Question: In each case, who should be considered the "author"? How does creative control vs. physical execution matter?
📈 The Evolution of Copying Technology
From Scarcity to Abundance: 500 Years of Copying Evolution
⚙️ Industrial Age Copying
- High cost: Expensive machinery, skilled operators
- High barrier: Need printing house, distribution
- Physical limits: Paper, ink, shipping costs
- Natural scarcity: Economic barriers prevent mass copying
- Quality loss: Each generation degrades
💻 Digital Age Copying
- Zero cost: Click "Clone" - instant perfect copy
- No barriers: Anyone with internet access
- No physical limits: Unlimited distribution
- Artificial scarcity: Only DRM prevents copying
- Perfect quality: No degradation, ever
🔥 The Copyright Crisis
Copyright law was designed for the printing press world of high copying costs and natural scarcity. How should it adapt to the GitHub world of zero-cost perfect copying?
🔗 Building the Bridge to AI
🎯 The Pattern: Human Control + Technology = Authorship
From 1884 to today, the pattern is consistent:
- Photography (1884): Human arranges scene → camera captures → human authorship
- Filmmaking: Human directs → cameras/crew execute → human authorship
- Glass art: Human designs → assistants execute → human authorship
- Music: Human composes → performers execute → human authorship
The question for AI: Does human prompting/direction constitute sufficient creative control for authorship?
7. 🤖 AI & Modern Copyright Challenges
💻 Visual Example: Human-AI Collaboration Spectrum
Minimal human control
High human control
🎨 AI Art Examples: The Authorship Spectrum
From Minimal to Maximum Human Creative Control
🤖 Minimal Human Input
Authorship? Probably not copyrightable - minimal human creativity
🛠️ Moderate Human Direction
Specific style, composition, mood
Authorship? Unclear - significant human direction but AI execution
🎯 Maximum Human Control
Extensive human creativity & control
Authorship? Likely copyrightable - substantial human creativity
🔍 The Legal Test
Courts will likely examine: How much human creativity, choice, and control went into the final work? Is the human a "master" directing the AI tool, or just someone who happened to be present?
🏛️ The Constitutional Authorship Question
Current Copyright Office position: Only humans can be authors. But this raises the key question: When humans use AI tools, are they still "authors" under the Constitution?
⚖️ Current Legal Landscape
🚫 Thaler v. Perlmutter (2023) - AI Cannot Be Author
Facts: Stephen Thaler tried to register copyright for art created by AI with no human input.
Holding: Copyright Office correctly rejected application - only humans can be authors under current law.
But note: This case involved no human creative input. Different question when humans direct AI.
📰 NYT v. OpenAI (Pending)
Issue: Is AI training on news articles fair use?
NYT argues: Massive copying for commercial AI training
OpenAI argues: Transformative learning, like human reading
Stakes: Could reshape AI training practices
📊 Thomson Reuters v. Ross (2025)
First major AI loss: Court rejected AI company's fair use defense
Holding: Commercial legal AI training ≠ fair use
Signal: Courts skeptical of broad AI fair use claims
🤝 Agency Theory: A New Framework for AI Copyright
⚖️ Principal-Agent Analysis for AI
Legal Theory: When humans exercise sufficient creative control over AI, they function as principals directing AI agents.
📊 Creative Control Spectrum:
- Minimal Control: "Write a story" → weak agency relationship
- Moderate Control: "Write a mystery novel about a detective in 1920s Chicago with these character details..." → stronger
- Maximum Control: Detailed prompts, iterative refinement, human editing, selection from multiple outputs → strong principal-agent relationship
🎨 Test Case: Jason Allen's "Théâtre D'Opéra Spatial"
Facts: Allen used 624 prompts over 114+ hours to create award-winning art via Midjourney AI.
Agency Analysis: Extensive prompting, iteration, and selection = strong creative control comparable to Sarony directing Oscar Wilde photograph.
Copyright Office: Denied registration (AI cannot be author)
Current status: Allen v. Perlmutter litigation ongoing - first major test of human-AI authorship theory
📝 Alternative Theory: Prompt as Copyrightable Expression
💡 Prompt-as-Expression Framework
Another approach: Complex AI prompts are themselves original works of authorship:
- Originality: Creative choices about structure, narrative, constraints
- Expression: Specific creative directions, not just ideas
- Fixation: Written/typed prompts saved in tangible form
- Result: AI output = derivative work of human-authored prompt
Advantage: Sidesteps "AI authorship" question entirely - focuses on human-authored prompt.
🔮 Fair Use for AI Training: The Learning Question
📚 The Functional Analysis Approach
Key insight: Focus on function, not technology. AI training serves same function as human learning.
Learning vs. Distribution:
- Learning (should be fair use): Reading to understand patterns, style, technique - no redistribution
- Distribution (infringement): Reproducing/redistributing original works - substitutes for purchase
Four Factor Analysis:
- Purpose: Transformative learning (strongest fair use category)
- Nature: Published works (neutral factor)
- Amount: Entire works needed for learning (like human students)
- Market Effect: People still buy news for information, not for language patterns
Literature Student Scenarios:
- Basic use: "AI, write me a short story about time travel"
- Moderate use: Detailed character descriptions, plot outline, style specifications, revision requests
- Intensive use: 50+ refined prompts, human editing of output, combining multiple AI generations, adding original content
Questions: Where does authorship lie in each scenario? How does this compare to hiring a ghostwriter or working with an editor?
🎭 Back to Oscar Wilde: The Circle Complete
📸 1884 → 2025: Same Principle, New Technology
The 1884 Oscar Wilde photograph case established that human creative control over machine output = authorship. Today's AI challenges test the same principle with more sophisticated technology.
Sarony's control: Posing, arranging, lighting, directing expression
Modern AI user's control: Detailed prompting, iterative refinement, selection, editing
The technology changes; the legal principle endures.
8. 🌍 The International Dimension: From Berne to Global Diversity
📜 The Berne Convention: Foundation of International Copyright
🏛️ Historical Origins (1886)
Born from necessity: In the late 19th century, authors like Victor Hugo faced rampant international piracy. Publishers freely reprinted foreign works without permission or payment.
📅 Key Dates:
- 1878: International Literary Association founded (Victor Hugo, president)
- 1886: First Berne Convention signed by 10 countries
- 1989: United States finally joins (103 years late!)
- 2022: 181 member countries
🌟 Revolutionary Principles:
- National Treatment: Foreign authors get same rights as domestic
- Automatic Protection: No registration required
- Minimum Standards: Life + 50 years (often exceeded)
- Moral Rights: Recognition of author's personality
🎭 Moral Rights (Droit Moral): The Author's Soul
What Are Moral Rights?
Beyond money: Moral rights protect the author's personality and reputation, not just economic interests. They're "inalienable" - can't be sold or waived in many countries.
The Core Rights:
- Attribution (Paternity): Right to be named as author
- Integrity: Right to prevent distortion or mutilation
- Disclosure: Right to decide when work is "ready"
- Withdrawal: Right to remove work from circulation (with compensation)
🌏 Comparative Approaches: A World of Difference
🇫🇷 France: The Birthplace of Droit d'Auteur
Philosophy: The work is an extension of the author's personality
- Moral rights: Perpetual, inalienable, imprescriptible
- Can't waive: Even contracts saying "I waive moral rights" are void
- Example: Heirs can still object to colorizing B&W films
- Famous case: Court stopped sequel to Les Misérables that "betrayed Hugo's spirit"
🇺🇸 United States: The Economic Outlier
Philosophy: Copyright as economic incentive, not personality right
- Limited moral rights: Only for visual art (VARA 1990)
- Can waive: Artists routinely sign away VARA rights
- No general attribution right: Ghost writers, work-for-hire common
- Example: Can legally publish "Stephen King" novel he didn't write (if you own rights)
🇬🇧 United Kingdom: The Middle Ground
Philosophy: Pragmatic balance between Continental and American approaches
- Moral rights since 1988: But can be waived by contract
- Must assert: Author must claim attribution right
- Duration: Same as copyright (life + 70 years)
- Example: BBC can edit your script, but can't remove your name without permission
An author sells film rights to their novel. The movie:
- Changes the ending from tragic to happy
- Adds graphic violence not in the book
- Credits the author as "based on the novel by..."
What can the author do in France vs. USA vs. UK?
🌐 Beyond the West: Diverse Copyright Traditions
🇮🇳 India: Fair Dealing with Development Goals
- British heritage: Fair dealing, not fair use
- Educational emphasis: Broad exceptions for teaching
- Delhi University case: Photocopying textbooks for students = fair dealing
- Balance: Development needs vs. author rights
🇧🇷 Brazil: Civil Law Rigidity
- No fair use: Exhaustive list of exceptions
- If not listed, prohibited: No flexibility
- Challenge: Digital age needs vs. rigid rules
- Reform debates: Adding flexibility without losing certainty
🇨🇳 China: Evolving Through Legal Borrowing
Rapid transformation: From minimal protection to sophisticated system in 40 years
- Closed-list exceptions: Like civil law countries
- Moral rights: Stronger than USA, weaker than France
- Strategic borrowing: Adopts what works from others
- Tech focus: Adapting to digital/AI faster than most
⚖️ The Treaty Web: How It All Connects
🕸️ International Framework
Berne Convention (1886)
Foundation - minimum standards
TRIPS Agreement (1995)
Trade enforcement - WTO teeth
WIPO Treaties (1996)
Digital age updates
Result: Harmonization with diversity - same basic rules, different cultural implementations
You're advising an American author whose novel will be published in France, UK, and Brazil:
- What rights do they have in each country?
- What should their contracts address?
- How do moral rights affect film/TV adaptations?
- What happens if they use AI assistance?
🔥 Hot International Issues
- AI & Authorship: Countries taking different approaches - Japan allowing AI training on copyrighted works, EU considering opt-out systems
- Platform Liability: US Section 230 vs. EU Copyright Directive Article 17
- Colonial Copyright: Traditional knowledge, folklore, indigenous rights
- Digital Single Markets: Regional harmonization (EU, African Union proposals)
- Fair Use Expansion: Countries considering flexibility vs. certainty trade-offs
🌍 The Global Creative Commons
Same goals, different paths: Every country wants to encourage creativity and protect creators. But culture shapes law:
- France: Author as romantic genius deserving perpetual respect
- USA: Creator as economic actor needing market incentives
- India: Balance between author rights and educational access
- China: Rapid modernization while maintaining control
Understanding these differences is crucial for any lawyer working with international creative industries.
9. 🛡️ Digital Platform Enforcement: DMCA Safe Harbors & Content Moderation
In the digital age, most copyright enforcement happens not in courtrooms, but on platforms. Understanding how the DMCA safe harbors work—and where they're failing—is essential for modern copyright practice.
🏛️ DMCA Safe Harbor Framework: The 1998 Compromise
📜 17 U.S.C. § 512: The Digital Millennium Copyright Act
The Grand Bargain: Platforms get immunity from liability if they follow notice-and-takedown procedures.
🛡️ Safe Harbor Requirements (§ 512(c)):
- No actual knowledge: Platform can't know content is infringing
- No financial benefit: Can't directly benefit from infringement
- Notice and takedown: Must respond "expeditiously" to proper notices
- Repeat infringer policy: Must terminate repeat offenders
- DMCA agent: Must designate agent to receive notices
The Trade-off: Platforms get immunity, but copyright holders get a quick takedown mechanism. No judge required—just a notice.
📺 YouTube Content ID: Automated DMCA in Action
The World's Largest Automated Copyright System
⚡ Content ID Process
> Audio fingerprint detected
> Match found: "Uptown Funk" (Universal Music)
> Action: CLAIM - Monetize
> Status: Revenue redirected to copyright owner
Result: Video stays up, but all ad revenue goes to Universal Music instead of the creator
📊 Content ID by the Numbers
❌ Blocked
Video completely removed. Used for premium content like recent movies.
💰 Monetized
Ads placed on video, revenue goes to copyright owner. Most common outcome.
📊 Tracked
Copyright owner can see viewership statistics but takes no other action.
⚖️ The Fair Use Problem
Content ID can detect copying but can't understand context. A 10-second clip might be fair use for commentary, parody, or education, but the algorithm doesn't know the difference.
📋 Notice and Takedown in Practice
⚖️ The DMCA Notice Process: Step by Step
📝 Required Elements of a Valid DMCA Notice:
- Identification of copyrighted work being infringed
- Identification of infringing material and location
- Contact information for complaining party
- Good faith statement that use is not authorized
- Statement of accuracy under penalty of perjury
- Signature of copyright owner or authorized agent
🔄 The Counter-Notice Process:
- User can file counter-notice claiming fair use or non-infringement
- Platform must restore content in 10-14 days unless copyright holder sues
- Problem: Most users don't know about counter-notices
🤖 The Automation Problem: When Algorithms Enforce Copyright
🚨 Platform Automation Examples
📺 YouTube Content ID:
- System: Automated fingerprinting and matching
- Scale: Scans 500+ hours uploaded every minute
- Actions: Block, monetize, or track content
- Problems: Can't analyze fair use context
🎵 DistroKid & Music Platforms:
- Problem: Musicians get flagged for their own content
- Cover songs: Automatic rejections even with proper licenses
- Classical music: Public domain works flagged as infringing
- Appeal process: Often slow and opaque
🌐 Platform Comparison: Different Approaches to Copyright
How Major Platforms Handle Copyright Enforcement
YouTube
- System: Content ID + manual DMCA
- Approach: Hyper-aggressive (monetize/block)
- Appeals: Complex multi-tier system
- Fair Use: Poorly handled by automation
- Bias: Heavily favors large media companies
TikTok
- System: Audio fingerprinting + AI detection
- Approach: Moderate (mute audio, reduce reach)
- Appeals: Streamlined but limited
- Fair Use: Better for short-form content
- Music: Licensed deals with major labels
Twitch
- System: Post-hoc DMCA + live monitoring
- Approach: Reactive (delete VODs, warn users)
- Appeals: Standard DMCA counter-notice
- Fair Use: Struggles with live commentary
- Problem: Retroactive enforcement chaos
- System: Audio matching + visual recognition
- Approach: Mixed (block, monetize, limit reach)
- Appeals: Simplified through Meta systems
- Fair Use: Limited recognition
- Stories: More lenient for ephemeral content
📊 The Pattern
All platforms face the same dilemma: automated systems can detect copying but can't understand fair use. The result is systematic over-enforcement that chills legitimate expression.
📄 Anatomy of a DMCA Takedown Notice
Real DMCA Notice Example (Anonymized)
From: Universal Music Group Legal Department
Subject: DMCA Takedown Notice - Copyright Infringement
I am writing to notify you of copyright infringement on your platform:
1. Identification of copyrighted work:
"Shape of You" by Ed Sheeran (2017)
Copyright owner: Atlantic Records/Warner Music Group
2. Identification of infringing material:
Repository: github.com/username/music-collection
File: /songs/shape_of_you.mp3
Full audio track uploaded without authorization
3. Contact information:
Universal Music Group
2220 Colorado Avenue, Santa Monica, CA 90404
legal@universalmusic.com
4. Good faith belief statement:
I have a good faith belief that use of the copyrighted material
described above is not authorized by the copyright owner.
5. Accuracy statement:
The information in this notification is accurate, and under
penalty of perjury, I am authorized to act on behalf of
Universal Music Group.
Signature: /s/ Legal Department
Date: March 15, 2025
✅ What Makes This Valid
- Identifies specific copyrighted work
- Locates exact infringing material
- Includes all required statements
- Signed under penalty of perjury
⚠️ Common Problems
- Vague identification of works
- Missing contact information
- No good faith belief statement
- Targeting fair use (bad faith)
⚖️ The Overinclusive vs. Underinclusive Dilemma
🎯 The Enforcement Spectrum: Where Should We Draw the Line?
Every enforcement system faces a fundamental choice about where to set the threshold:
🚫 Overinclusive (Current Reality)
- Strategy: "When in doubt, take it down"
- Result: Lots of legitimate content removed
- Examples: Fair use videos, parody, commentary
- Platform motivation: Avoid DMCA liability
Cost: Chills legitimate expression and fair use
✅ Underinclusive (Alternative)
- Strategy: "When in doubt, leave it up"
- Result: More infringing content remains
- Examples: Pirated movies, songs
- Platform risk: Lose safe harbor protection
Cost: More actual infringement goes unaddressed
The Current Reality: Platforms err heavily toward overinclusion because the DMCA creates stronger incentives to remove content than to protect fair use.
💭 Fair Use vs. Automated Enforcement: The Fundamental Conflict
🎭 Why Algorithms Can't Do Fair Use Analysis
🧠 Fair Use Requires Human Judgment:
- Context matters: Is it parody? Commentary? Education?
- Amount used: Algorithms can measure quantity, not qualitative importance
- Transformative purpose: Requires understanding creator's intent
- Market impact: Economic analysis beyond algorithmic capability
🤖 What Algorithms Actually Do:
- Pattern matching: "This audio matches this copyrighted song"
- Binary decisions: Match = infringement (ignoring fair use)
- Scale efficiency: Process millions of uploads daily
- False positives: Better safe than sorry approach
🎪 Real-World Platform Problems
📱 Case Studies in Automated Overreach
🎵 Musicians vs. Their Own Content:
- Artists flagged for uploading their own songs
- Cover song licenses not recognized by algorithms
- Classical musicians flagged for playing public domain works
📺 Video Commentary & Education:
- Film critics flagged for showing movie clips in reviews
- Educational videos removed for showing historical footage
- News organizations flagged for showing breaking news clips
🎭 Parody & Satire:
- Comedy sketches removed for using copyrighted music
- Political satire flagged as trademark infringement
- Meme culture constantly battling takedown systems
Central Question: How should we balance protecting copyright holders against preserving space for fair use and legitimate expression?
💭 Consider These Approaches:
- Status quo: Current overinclusive automated systems
- Human review: Require human evaluation for fair use claims
- Penalty systems: Penalize platforms for false takedowns
- Safe harbors for fair use: Protect certain categories of content
- Algorithmic transparency: Require disclosure of takedown algorithms
Discussion Questions:
- Is it better to err on the side of protecting copyright or protecting expression?
- Should platforms face liability for false takedowns?
- How can we preserve space for criticism, parody, and commentary in an automated world?
- What would you recommend to fix the current system?
🌍 International Variations: EU Copyright Directive Article 17
🇪🇺 Europe's Different Approach
Article 17 (formerly Article 13): Makes platforms directly liable for user uploads, requiring proactive content filtering.
🔍 Key Differences from US DMCA:
- Proactive filtering: Must prevent uploads, not just respond to notices
- Direct liability: Platforms are liable unless they prevent infringement
- Upload filters: Automated systems effectively required
- Safeguards: Supposed protections for parody, criticism, quotation
Result: Even more aggressive automated filtering than current US systems. The EU approach makes the overinclusion problem worse, not better.
🔮 Future Directions: Reforming Platform Enforcement
🛠️ Potential Solutions for Better Balance
📋 Legislative Reform Ideas:
- Counter-notice improvements: Faster restoration, better user education
- Fair use safe harbors: Protect certain categories (education, commentary)
- Penalty for false claims: Consequences for bad-faith takedown notices
- Algorithmic accountability: Transparency requirements for automated systems
⚖️ Judicial Developments:
- Lenz v. Universal: Must consider fair use before sending takedown
- Section 512(f): Liability for knowing misrepresentations
- Pending cases: Challenging automated overreach
The Challenge: Balancing scale, speed, and accuracy in a system that processes billions of pieces of content daily.
10. 💼 Practice Applications & Future Challenges
📚 Copyright in Publishing Practice
🐧 Publishing House Rights Management
- Acquisition: Negotiating rights from authors
- Print vs. digital: Separate licensing often required
- Territory rights: US vs. international distribution
- Adaptation rights: Film, TV, audio, graphic novel
- Translation rights: Foreign language editions
📖 Modern Contract Clauses
- AI disclosure: Must author reveal AI assistance?
- Warranty clauses: Author guarantees original creation
- Indemnification: Who's liable for copyright claims?
- Moral rights: Attribution and integrity (more relevant internationally)
⚖️ Constitutional Anchoring Method for Practice
🎯 "Lead with Law" Analysis Framework
For any copyright issue, always start with fundamental law:
- Constitutional purpose: Does this serve "promoting progress of science and useful arts"?
- Statutory text: What does the Copyright Act actually say?
- Historical precedent: How did foundational cases like Burrow-Giles analyze similar issues?
- Modern precedent: Are current courts faithful to constitutional/statutory foundations?
- Policy analysis: What outcome best serves constitutional purpose?
🔮 Emerging Issues for Literature Lawyers
📱 Digital Platforms
- Social media literature: Twitter threads, Instagram stories
- Interactive fiction: Reader participation in plot
- Podcast narratives: Serial storytelling rights
- Platform liability: When do platforms become publishers?
🤖 AI Integration
- Human-AI collaboration: Authorship determination
- Contract language: AI disclosure requirements
- Liability issues: When AI copies existing works
- Fair use evolution: AI training and learning rights
🌍 Global Considerations
- International copyright: Different national approaches to AI
- Moral rights: Attribution/integrity rights abroad
- Digital first sale: Resale of e-books and digital works
- Platform jurisdiction: Which country's law applies?
💼 Essential Skills for Future Lawyers
🔧 Technical Competencies
- AI literacy: Understanding how generative AI actually works
- Digital platforms: Social media, streaming, e-commerce
- Publishing industry: How books get made and money flows
- International copyright: Key differences between jurisdictions
⚖️ Legal Analysis Skills
- Constitutional grounding: Always start with fundamental law
- Statutory construction: What did Congress actually write?
- Precedent application: How do old cases apply to new technology?
- Policy analysis: What serves the constitutional purpose?
You're counseling these clients - what do you advise?
- Novelist: Wants to use AI to help with research and first drafts. What should the publishing contract say about AI use?
- Publisher: Wants to create AI-illustrated versions of public domain classics. What copyright issues arise?
- Fan fiction writer: Receives cease-and-desist from major studio. How do you analyze fair use vs. derivative work claims?
- Literary magazine: Wants to publish AI-assisted poetry. What disclosure and copyright ownership issues must you address?
- Academic: Writing book that extensively quotes and analyzes contemporary novels. How much can she quote under fair use?
📚 Synthesis: Literature, Law, and Technology
🎭 The Literature-Copyright Connection
As you've studied in this course, literature doesn't just reflect law—it shapes it. Similarly, copyright law doesn't just govern literature—it fundamentally shapes what gets written, published, and preserved.
Copyright's Role in Literary Culture:
- Economic foundation: Authors need income to write
- Publisher incentives: Investment in new voices and experimental work
- Cultural preservation: Long copyright terms preserve literary heritage
- Creative building blocks: Fair use allows criticism, parody, and cultural conversation
- Public domain enrichment: Eventually all works enter the commons
🔮 Looking Forward: The Next Chapter
🚀 The Future of Literary Copyright
The challenges ahead will test whether copyright law can adapt while serving its constitutional purpose:
Key Questions for the Next Decade:
- Human-AI collaboration: How do we recognize human creativity enhanced by AI?
- Global harmonization: Can copyright law work across different national approaches?
- Platform responsibility: What role should tech companies play in copyright enforcement?
- Fair use evolution: How should transformative use doctrine adapt to new technologies?
- Access vs. protection: How do we balance creator rights with public access to knowledge?
🎭 Full Circle: From Oscar Wilde to Modern Literature
We began with Oscar Wilde's 1884 photograph—the first Supreme Court case recognizing human authorship through technological collaboration. Today, as literature increasingly involves AI, digital platforms, and global distribution, Wilde's image remains the foundational precedent for understanding human creativity in technological contexts.
"I can resist everything except temptation" - including the temptation to revolutionize how we think about authorship, creativity, and the future of literature itself.
For future lawyers: Master the fundamentals, understand the technology, anchor in constitutional purpose, and help shape the law that will govern creativity for generations to come.
As future legal professionals who understand both literature and law:
- How will you help creators navigate the intersection of human creativity and AI assistance?
- What role should copyright law play in preserving literary culture while enabling innovation?
- How can the constitutional purpose of "promoting progress" guide us through technological disruption?
- What would you want copyright law to look like in 2035?