Comment on Copyright Protections for Architecture

A view of one of the rooms in Taliesin in Wisconsin, a house designed by Frank Lloyd Wright.
A view of one of the rooms in Taliesin in Wisconsin, a house designed by Frank Lloyd Wright.

Lauren Jean Bradberry, a third year law student at Louisiana State has a comment in volume 76 of the Louisiana Law Review examining the scope of copyright protection for architecture. It offers an interesting read, so long as you can forgive the puns we lawyers seem to love.

From the introduction:

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Buccafusco on Copyright authorship

Christopher Buccafusco, a Professor at Cardozo Law School has posted on SSRN a draft of his work forthcoming in the Virginia Law Review titled “Copyright Authorship”. From the abstract:

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects.

After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

Buccafusco, Christopher, A Theory of Copyright Authorship (September 23, 2015). Virginia Law Review, 2016, Forthcoming. Available at SSRN:

Inspiration, Fairey and George Orwell

“[I]t wasn’t created to say that you can’t be inspired “

So says Shepard Fairey in discussing Copyrights in an interview with Justin Shady of the Onion AV Club:

The A.V. Club: You’ve used photo references throughout your career, even going back to the André The Giant image that became your signature. But the Obama “Hope” poster sparked a legal battle between you and the Associated Press. Where’s the line between intellectual property and creative expression?

Obama Hope by Shepard FaireyShepard Fairey: The most important thing about intellectual property vs. creative expression is that copyright law was created not to stifle creativity, but to encourage creativity. The idea behind copyrighting was that if you made something, a piece of music or art or a product, someone cannot make an exact facsimile or replica of it, because that would hurt your ability to sell the exact same thing. But it wasn’t created to say that you can’t be inspired by something and make an evolution of that, something that transforms it. A lot of classical music or even aspects of the Declaration Of Independence are all borrowed from works that came before them. Now, there’d be lawsuits over all this stuff, but the common sense was that you build on ideas. If what you build doesn’t compete on the market for the thing that inspired it, then everyone wins.

And that’s the way I look at this Obama image. First of all, the AP is showing the wrong photo. I’d found this image of George Clooney and Obama at this Darfur panel, and I thought, “That’s kind of the right look for Obama.” When I saw the one they had, I thought they’d just cropped in on the same photo, but I realized it was taken either a split second before or a split second after. It’s interesting how once you have my poster and everyone knows it as a reference, everyone wants to work backward and find the source. But the source was completely irrelevant to the final cause, because Obama wasn’t even running for president yet when that was happening. It was a news photo. What I created was clearly a presidential poster—new colors, new slogan, totally stylized and idealized, and it doesn’t compete with the original.

That makes good sense I think, and whatever you think of Fairey, I think he does have a point that so much of what is created owes a debt to what has come before; and overly restrictive copyright regimes thwart that creation.   For another example, Paul Owen in the Guardian recently argued George Orwell’s 1984 owes much of its “plot, characters and conclusion” to a work by Yevgeny Zamyatin’s “We”.  He reviewed the work in 1946, three years before he published 1984.  But as Owen argues:
So does it matter that Orwell borrowed plot and characters from the earlier book? After all, it seems clear that he made a superior work of literature out of them. Nineteen Eighty-Four’s importance comes not so much from its plot as from its immense cultural impact, which was recognised almost immediately when it won the £357 Partisan Review prize for that year’s most significant contribution to literature, and which has continued to this day. Most of the aspects and ideas of the novel that still resonate so strongly in political life are his own: newspeak, doublethink, thoughtcrime, the Thought Police, Room 101; the extreme use of propaganda, censorship and surveillance; the rewriting of history; labels and slogans that mean the opposite of what they say; the role for Britain implied in the name Airstrip One.
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Yours Truly on the Americana Show

SHMU is a community media organization, and it operates a volunteer radio station here in Aberdeen. It reminds me in many ways of some of the very best things about College and community radio back in the US.

I don’t often write about it here, but one of the things that got me started researching cultural property issues were my early interest in copyright law in law school. It’s perhaps a tenuous link, but the animating ideas behind a lot of my ideas on cultural property law and heritage are directly related to what I think about excessive copyright laws and other restrictions on how we consume music and visual works in digital form. No matter how easy it may become to find music in the future (either legally, illegally or quasi-legally) I think music still needs to be curated.

As such I was very pleased to be a guest on my good friend Dougie Thomson’s Americana show last weekend. The man has an incredible knowledge of some great American tunes; and he was kind enough to let me bring in some of my favorites. The show will be archived for a few days if any care to listen in. I had a great time, though I think I need quite a bit of work on my DJ skills. Hopefully I was at least charmingly inept. If nothing else the contrast between my neutral midwest accent and Dougie’s Scottish accent should be worth a listen. Those interested in the Slovenian sensation I mention on the show can learn about him here.

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The Pirate Party

Frank Pasquale of concurring opinions has a fascinating post on Rick Falkvinge, head of the Swedish Pirate Party.

You might be forgiven if you thought a Pirate Party was a bit comical, but it seems their positions are surprisingly thoughtful. They advocate a reform of copyright law, arguing copyright laws today “restrict the very thing they are supposed to promote.” I think that’s exactly right in some cases, as copyright protection should not provide an endless revenue stream. Mickey Mouse should not dictate the life of a right. It should reward creators for their original creations, not create endless monopolies. As they argue “a five years copyright term for commercial use is more than enough”. They also advocate a respect for the right to privacy, and tie in such advocacy to recent European history, “We Europeans should know better. It is not twenty years since the fall of the Berlin Wall, and there are plenty of other horrific example sof surveillance-gone-wrong in Europe’s modern history.”

Falkvinge spoke in July about “Copyright Regime vs. Civil Liberties” at Stanford University. It sounds cutting-edge, and it would be great to get him to come to Aberdeen as a part of our visiting scholars program. From what I can gather, he argues copyright first came about as censorship and a way to preserve the stationer’s guild in England after the advent of the printing press.

As Pasquale writes:

[H]e admitted that certain works that cost a huge sum wouldn’t be produced if their makers had no hope of financial return, so he favored some copyright protection for commercial uses of those works. However, Falkvinge said the threat to privacy posed by modern copyright enforcement techniques was too great to allow any legal monitoring of personal use of works.

I will make a bold and unsupportable prediction that copyright and privacy issues will become increasingly contentious, and a major political issue as the generations which grew up with the internet mature and become a political force. Pasquale has written before on copyright and civil disobedience via an AALS panel. One argument seemed particularly compelling:

Larry Solum presented an impressive application of rival philosophical views to the issue of principle-driven disobedience of copyright laws. After canvassing the shortcomings of utilitaran and deontological approaches, he presented his own virtue theory, essentially arguing that we should seek congruence between societal norms and laws. He also noted how far our DRM-loaded, anticircumvention-obsessed predicament diverges from that happier state of affairs.

It’s some really fascinating stuff, and the convergence between jurisprudence and copyright laws is interesting: Rawls and piracy or the morality of cartelization, seem very interesting and move the argument beyond mere utilititarian and economic justifications for the current state of affairs.

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Internet Radio

One of the best things about the internet is the way we can listen to any musical genre . Net radio allows us to enjoy and discover new music in a way that corporate-controlled radio never will.

However, the Copyright Royalty Board, in its infinite wisdom, has decided to dramatically increase the royalties net radio sites must pay to SoundExchange. The net result will be more use of peer-to-peer networks, and less “legal” access to new music. Though this increase purports to help compensate artists, that is simply not the case.

In March, the CRB increased the royalty rates to 7/100 of a penny per user who listened to each song. Bafflingly, these rate increases are retroactive to 2006.

This is a dramatic increase from the small hourly rate required previously. Setting aside how exactly we can determine listenership, this increase is sure to shut down many streaming radio stations. It seems that the increase money which will make it to artist will only be hundreds of dollars per year, hardly worth the price of shutting down the streaming stations.

Congress can still step in and prevent or amend the increase. To learn more visit

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Jeff Tweedy of Wilco

Pitchfork has an excellent interview with Jeff Tweedy of the band Wilco today. I usually talk about art and antiquities here, but many of the issues which give rise to controversy in the traditional art mediums are present with respect to music as well. The law often struggles to allay the tension between compensating creators and allowing the public to appreciate those creations. In this excerpt Tweedy talks about how the band gives away much of its music.

Pitchfork: Let me ask you about the listening party you set up for Sky Blue Sky, where you streamed it from the website. It’s not surprise considering Wilco have always been at the forefront of sharing music online. You streamed Yankee Hotel for a while, and then you did that thing with Doctors Without Borders when A Ghost Is Born came out.

Jeff Tweedy: Fans did, I wouldn’t want to take credit for that.

Pitchfork: You stirred the idea a bit at the beginning though, right?

Jeff Tweedy: The idea initially came to us that they wanted to give us some money as an act of good faith because they were downloading the record. We said, “Well we can’t really do that. We can’t take money; it would be against our contract. We wouldn’t feel right about doing that. But if you really want to do something here’s a charity that we really believe in.” So they set it up after that.

Pitchfork: How much did you end up raising?

Jeff Tweedy: I think $15,000.

Pitchfork: That’s pretty great. So few artists are willing to think of new models, you know?

Jeff Tweedy: Yeah I just think it’s pretty simple for us. The whole experience with Yankee Hotel Foxtrot validated a lot of ideas we’ve had. It’s not necessarily to make a piece of plastic we have to sell every two or three years. We would love to be able to think that we could do it even if we didn’t have a record deal, which we proved to ourselves that we could. We liked the idea of people listening to our music. I guess the simplest way of saying it is that I don’t think that artists should expend any energy keeping people from listening or seeing or hearing or reading their art. I think that’s antithetical to the whole principle of being an artist.

Pitchfork: When you put up the new one, it only streamed for a little while. Is there any element of hitting the fans before the leak does and trying to head people off at the pass?

Jeff Tweedy: No because, we basically resign ourselves to the idea that when the record label starts sending out promo copies of the record it’s out. And very shortly after that, almost anybody who want’s it would be able to get it if you wanted it, if you’re technically savvy enough to figure out a way to get it– even from our stream. There’s a lot of things that we still have faith in. I still have a lot of faith that there’s very few people who are savvy enough to actually produce a good sounding copy of the record. I also believe that in general there is no good sounding copy of the record other than the vinyl. I think that vinyl versions of the last few records are far superior. This one in particular I think is going to sound great on vinyl. Other than that I think its not necessarily heading people off at the pass. I think that it’s good for us to have people listen to our music.

Pitchfork: Why do you suppose there aren’t more high-profile bands or artists actually coming out and saying that downloads aren’t the end of the world?

Jeff Tweedy: I don’t have any idea. Fear? Greed? I don’t know. Those would be the two principle ideas that I think that would be at work there. I have fear. I have fear as a businessman that it could somehow impact my ability to take care of my family. But I don’t think that fear should be catered to above the idea that I made music because I wanted people to listen to it. I think it’s really tough for people to make that leap of faith. In particular, when they have a lot of people depending on them or they have a lot of bills to pay. You know, construction efforts underway for a second pool or whatever. In the long run the thing that no one will be able to download is a live music experience. But I also think that there’s a lot of good will that exists between musicians and the people that support them and listen to them. And when they’re treated well, I still believe that most people want to do the right thing. Not everybody has a lot of money, so I think that I want people to be able to hear it. I think it would be nice if they paid us back for it. That would be great. It’s always going to be a better situation for us if somebody cares enough to listen.

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