Owning the Intangible/Originality

What's so original about originality?
by Peter Dixon

Introduction

A lot of people would really like to make money without working very hard. Why invent something new when you can rerelease something old? It seems to be common practice these days to publish new editions of Shakespeare, Cervantes, and what-have-you with critical forewords and other piles of padding that no one reads. By writing a brief introduction and some new material, you too can one day be a successful republisher! A rather sketchy ad promised me quick thousands if I did this. Is this practice legal? Should it be?

Step one is selecting the public domain work you wish to exploit plagiarise republish. It must be in the public domain because otherwise you need permission from whoever holds the copyright, which may involve you coughing up some money. Just tracking the copyright holder down can be difficult enough. A work is in the public domain if the author has specifically left it to the public domain or the copyright has expired. Most public domain content is the latter. The conditions are extremely complicated, so here's a helpful webpage or two for reference. http://copyright.cornell.edu/resources/publicdomain.cfm http://www.publicdomainsherpa.com/calculator.html

Step two is researching the rules and restrictions on what you're doing. A derivative work, according to the U.S. legal code, Title 17, Chapter 1, § 101, is

a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

The only copyrightable part of a derivative work is the parts that are added. This makes sense - I can't make a fancy frame for a photograph and expect to copyright the photograph, for instance. Most of the court cases pertaining to derivative works are focused around the boundary between original content and... not original content. In Bridgeman vs Corel the United States District Court for the Southern District of New York ruled that exact photographs of public domain artwork can't be copyrighted. http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm, http://englishhistory.net/tudor/art.html

One of the most well-known examples of a derivative work is L.H.O.O.Q. by Marcel Duchamp - it's the Mona Lisa, but with a moustache and beard and the titular caption (which, when read aloud quickly, sounds like "she has a hot ass" in French). This is a ubiquitous example of the concept of "transformativeness": the notion that if the changes show the work in a new light, the work is original. For instance, L.H.O.O.Q. was viewed as a satire of the "bourgeouis cult" of France; the meaning of the painting was changed significantly, even if the painting itself wasn't. http://www.toutfait.com/unmaking_the_museum/LHOOQ.html

So to produce a derivative work of something not in the public domain, permission is necessary, and the derivative work can't be copyrighted unless it somehow shows the original in a new light. Project Gutenberg, an organization dedicated to preserving public domain books and making them available over the internet, says

When a text is in the public domain, anyone--from you to the world's biggest publisher--can edit it and republish the edited version. When the edits are substantial enough, the edited work is deemed a "new edition", and gets a new copyright, dating from the time the new edition was created.

How substantial must the edits be to qualify as a "new edition"? That is for a court to decide in any particular case. Changing some punctuation or Americanizing British spelling would not qualify a work for a new edition. Theorizing something about Shakespeare and rewriting lots of lines in "Hamlet" to emphasize your point would make a new edition. In between those extremes is a grey area, where each new edition would have to be considered on a case-by-case basis." http://www.gutenberg.org/wiki/Gutenberg:Copyright_FAQ

In another case, Golan vs Gonzales, later revisited as Golan vs Holder, it was held that there was a basic problem with removing works from the public domain and forcing retroactive royalties on whoever had been using them. In this case, Uruguay had recently changed its copyright terms to include a number of works that were United States public domain. The end result (after a few appeals and reversals) came the notion that something in the public domain couldn't be taken out by later changes to the law. This is consistent with Eldred vs Ashcroft, where a massive coalition of groups challenged the constitutionality of the Sonny Bono Copyright Term Extension Act on the grounds that copyright had to have a finite limit (re:Constitution), which (they argued) it wouldn't if the duration could be extended potentially indefinitely. The Supreme Court, for better or worse, upheld the SBCTEA, but sensibly didn't put 20 years of recently public-domained content back under copyright.

Note: this principle isn't law. Every now and then some hilarious international misunderstanding causes a copyright desynchronization and much squabbling ensues, with the end result sometimes being a work entering and exiting the public domain.

A legal summary: it's totally legal to take something out of the public domain and reissue it and sell it, but you get no copyright. To claim copyright on a derivative work, it needs to be “transformative”. Non-public domain derivative works either must fall under fair use or be specifically permitted by the author.

Court Cases

What is the border between derivative and original work? I have a lovely collection of court cases and examples in no general format that I believe do a good job of delineating it. First, a series of court cases to attempt to describe it legally, followed by a collection of examples from which I argue <<work on arguing part>> for what I think should be the case.

In Feist Publications, Inc. v. Rural Telephone Service Co. Feist sued Rural Telephone Service for copying a phonebook. Sensibly, the courts ruled that no, you can't numerically arrange a collection of telephone numbers and copyright it.

In another case, Runge v. Lee, Runge wrote a magazine article on the topic of facial excercises, later incorporated into a book. Lee was employed by her for about nine months, and two years later she ALSO wrote a book on facial exercises. The book contained most of the contents of Runge's. Runge sued, and won. I support the court here – apparently Lee's book contained all of the excercises in Runge's and only one original.

So what is the result of all this information? First, yes it is quite easy to make money off of someone else's genius. (This is hardly a unique thing.) Second, don't expect to copyright anything you outright steal. Third, you can make a living by defacing famous artworks (though it probably isn't original any more.) Fourth, yes, it is entirely legal to sell people republished, freshly-foreworded public domain content. A couple of publishing companies have public domain content as the mainstay of their output.

What about works that aren't in the public domain?

First, a bunch of Harry Potter examples. On the original side, we have Harry Potter itself. I don't think most rational people will dispute this, though there are several court cases which I'll mention in a bit. On the decidedly unoriginal, we have the poorly-translated Chinese knockoff Harry Potter and the “Leopard-Walk-Up-To-Dragon”, which is a page and a half of vaguely Potter-like Engrish followed by the majority of J.R.R Tolkien's The Hobbit with some of the names changed.

Between this, we have fanfiction. A huge amount of the internet is devoted to people writing stories about their favorite characters – Ranma, Buffy, Kirk, you name it. Is your own story original, if it uses someone else's characters? In my opinion, yes it is. The story is at least as important as the characters in it. Is fanfiction legal? As far as I can tell, yes I is. Many large fanfiction sites have been running openly and publicly for over a decade. I have yet to encounter any legal action against them.

This is similar to the unofficial, unauthorized sequel written by a father for his kids, “James Potter and the Hall of Elder's Crossing”. The only difference is that though J.K. Rowling was initially opposed to it she quickly dropped the lawsuit and endorsed it as canon. The difference is twofold: first, he has the author's permission, so it's definitely legal. Second, it was actually sold for money.

Harry Potter in Calcutta is another strange case. The author took Harry Potter and a collection of Bengali literature and combined the two. This is, to me, an excellent and interesting idea with a lot of potential. But copyright intervened and Rowling forced the publisher to stop printing it.

Tanya Grotter is a series of Russian semi-parody semi-clones that borrow only general themes from the books. The eponymous main character is a female student at Tibidokhs School for Behaviorally-Challenged Young Witches and Wizards and rides a flying double bass. The author calls the books a “cultural reply” to Harry Potter, and past the very first the plots aren't even particularly similar.

Still, however, Rowling's lawyers tried to file a cease-and-desist in Russia, but failed. They successfully blocked its importation into the Netherlands and threatened the publisher with more lawsuits. The Dutch court denied the argument that the books were parody

This is silly. The books aren't even “what if Harry Potter was Russian”, which to me is itself a perfectly legitimate premise for an original work. This is a female Russian wizard who shares many similarities with Harry Potter. The book deliberately invokes them with its cover – same font, same general illustrative style, same framing mechanism. But I think this is perfectly reasonable grounds for fair use in the form of parody (though the Dutch court system disagrees.) I think it even qualifies as totally original.

Returning to the example of “definitely unoriginal”, Harry Potter and the Leopard-Walk-Up-To-Dragon, consider if I had taken Eragon and replaced the names with ones from Star Wars, and appropriate instances of dragons and magic with appropriate uses of lightsabers and the Force, and released it as “Star Wars: Fantasy Edition” to comment on perceived similarities between the two. This probably isn't copyrightable. But should I be able to release it to the public? I don't think so. It's so very similar to Eragon, and reads almost the same. Even though, like L.H.O.O.Q., I'm changing the meaning of the work, I believe too much of the original would be retained.

Is Eragon itself original? As pointed out above, it's... extremely similar to Star Wars in a fantasy setting. Changing the setting of something apparently isn't enough for originality, like Harry Potter in Calcutta or Tanya Grotter. Obviously, since I don't have a problem with those I think it is original. But legally, why is this fantasy Star Wars original and not these culture-transplanted Potters? I don't have a good answer to this question, though I'm sure someone does.

Conclusion

There's a large discrepancy between what the courts have said and what I believe should be the extent of copyright. Currently, creators have too much control over derivative works. If I want to write a sequel to Watchmen I should be allowed to. People can read. They can tell the difference between Alan Moore and Peter Dixon. At the very least, the scope of parody should be extended, because too much legitimate creative output is blocked by current copyright.