MANOEL J. PEREIRA DOS SANTOS - aippi.org · manoel j. pereira dos santos getÚlio vargas foundation...

MANOEL J. PEREIRA DOS SANTOSGETÚLIO VARGAS FOUNDATION – DIREITO GVLAW

SÃO PAULO, BRASIL

Introduction

Creative transformation is the process of generating a new form of expression that incorporates elements of a preexisting work but constitutes an original work.

This usually involves making a derivative work or a substantial taking of another’s work.

Derivative works or substantial takings are not currently permissible without the express consent of the copyright owner of the preexisting work.

Similar terminology: “transformative work” or “transformative use” (element of “fair use” doctrine).

Traditional copyright concepts

Copyright has been based on two concepts:

(a) Authorship as the result of an isolated creation

(b) Work as meaning a unique product.

The concept of creativity has long valorized authors who are genius.

The true author would show originality and, in particular, a high degree of intellectual contribution.


Construction of the “romantic author”

“An ‘author’ in the modern sense is the sole creator of unique ‘original’ works”(MARTHA WOODMANSEE & PETER JASZI, The Law of Texts: Copyright in the Academy, at 769).

Copyright law is an author‐centered regime.

Works of collective ownership are placed outside the traditional copyright scope.


However, originality is not only a prerequisite. It is rather the rationale for copyright protection:

“The author of every original literary composition creates both the ideas and the particular combination of characters which represent those ideas upon paper. He is therefore an inventor, in two senses; and he has the exclusive possession, before publication, of his invention.”(GEORGE T. CURTIS, A Treatise on the Law of Copyright, 1847)


Therefore, ownership is also linked to the function of authorship:

“8. There is still another species of property, which, being grounded on labour and invention, is more property reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions: so that no other person without his leave may publish or make profit of the copies.”(BLACKSTONE, Commentaries on the Laws of England, The Rights of Things, Book II, Ch. 26, at 405).


There were areas of tensions affecting these concepts:

Small transformative borrowings or appropriations were permitted as part of the freedom of expression.

Piracy as the unlawful taking of another’s work would take place when the author adds nothing new to a preexisting work and claims authorship of that work.

Yet, there have been large creative transformations in musical traditions: classic music (Chopin, Mozart, Hayden) and jazz music composers (Gershwin).


There were areas of tensions affecting these concepts:

Originality has not always been a high standard for protection.

“Copyright protection applies equally to works of ‘high authorship’ and to works of emphatically ‘low authorship’.”(DAVID NIMMER, Copyright in the Dead Sea scrolls: authorship and originality, at 180)


Originality also meant that the work originates from the author:

“The word ‘original’ does not in this connection mean that the work must be the expression of an original or inventive thought….. [T]he Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author”. (University of London Press v. University Tutorial Press, [1916]2 Ch. D. 601)

Challenges of digital technologies

The cyberculture is based on new parameters:

Freedom of communication

→ “mass self‐communication web”:→ The system “is self‐generated in content, self‐directed in emission,

and self‐selected in reception by many that communicate with many“ (Castells, 2007)

Freedom of expression → “participative web”

→ Rule of connectivity : → Internet users actively interact and express themselves

(communication and creation)


Digital technologies have changed the creative process:

Interactivity recriates the notion of open work and reinforces the role of the reader.

Creation is part of the communication process : → Internet as a social networking.

Authorship reconsidered : → author as the one who contributes to a work.

New creative model → open collaborative work.


In literary theory, the romantic concept of author has been challenged since Roland Barthes’ 1968 essay The Death of the Author and Michel Foucault’s 1969 essay What is an author?

But, the legal system has not changed.

Recent attempts towards “collective authorship” and collaborative work made within copyright regime:

“Open Source Movement”“Creative Commons Licenses”


Sampling:

In music, is the process of taking a portion (sample) of a recorded material and reusing it in new studio recordings.

Musical borrowing has been present in musical creation in all genres and all periods.

Is digital sampling a case for changing traditional copyright standards?


Sampling:US sampling case law:Grand Upright Music Ltd. v. Warner Bros Records, Inc., 780 F. Suppl. 182 (S.D.N.Y. 1991) – “ipso facto infringement”Williams v. Broadus, No. 99 Civ. 10957, 2001 U.S. Dist. LEXIS 12894 (S.D.N.Y. 2001) – “de minimis use”Newton v. Diamond, 349 F.3d 591 (9th. Cir 2003) –“substantial similarity”Bridgeport Music, Inc. v. Dimension Films, 410 F. 3d 792 (6th Cir. 2005) – ‘sampling’ as an exclusive right.


Sampling:

Other jurisdictions’ case law:

Universal Music Australia Pty Ltd v Miyamoto –Australia – substantial reproductionCommonwealth Director of Public Prosecutions v Ng, Tran and Le – Australia Hyperion Records Ltd v Warner Music (UK) Ltd –United Kingdom (“de minimis use”)


Legal issues:

Does sampling qualify as a transformative use?

Under the Bridgeport holding, sampling requires consent even if the preexisting material was altered.

How to apply the U.S. “fair use rule” in civil law jurisdictions?

Should traditional infringement analysis be applied to sampling?


Other creative transformations:

Collage is a technique in visual arts, consisting of the assemblage of different takings of preexisting materials. Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) →Use of photo in painting accepted as fair use.


Other creative transformations:

Collage does not require digital technology.

In the digital environment it is called Remix, with a broader meaning:

“Using the tools of digital technology – even the simplest tools, bundled into the most innovative modern operating systems – anyone can begin to ‘write’ using images, or music, or video.”(Lawrence Lessig, Remix, 2008, at 69)


Appropriation Art :“[It] borrows common images from advertising, the mass media and elsewhere, places them in new contexts and, thereby, aims to change the way we think about these images.” (William M. Landes)

Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992)→ Jeff Koons made a sculpture using the very same

composition of a picture on a postcard. → Copyright infringement because no new expression

had been added to Koons' work and thus the work was not transformative.


Appropriation Art

Rogers’ Puppies – 1980 Koons’ Sculpture – 1988http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm

Copyright and freedom of expression

What is the difference between legitimate taking and infringement?

Authors have the exclusive right to control transformations of their works : → the right to make derivative works and

to approve substantial “takings”.

What is the rationale for such rule?

Derivative works borrow substantially from the preexisting work → creative use not a defense, only a prerequisite for protection.


What is the difference between legitimate taking and infringement?

Parody and paraphrase are permissible if they are not just a reproduction of a preexisting work.

In parody, the taking is of a form of expression, but it is permitted to favor freedom of expression.

Should we use the same parameter to other creative transformations or “takings”?


How to reconcile copyright and freedom of expression?

The basic mechanisms are the idea‐expression dichotomy, the term of protection, and the copyright limitations.

Civil law courts interpret narrowly, and are reluctant to extend by analogy, copyright limitations.

There are still few instances where civil law courts limit copyright interest in light of freedom of expression.



Freedom of expression defenses have been upheld mainly to permit quotation, news reporting, and artistic use as parody.

Trend in favor of permissible parody is less flexible regarding other creative transformations.

Civil law courts show more flexibility where freedom of press is at risk.



In Germany, there seems to exist broader exemptions in the Copyright Act to assure freedom of art:

• “Music quotation”→ Section 51(3) permits quotation of single passages from a musical work in an independent musical work.

• “Doctrine of free utilization”→ a work inspired in preexisting work can be created and exploited, provided that the core thereof is not taken.



German case law on freedom of art:

The Alcolix parody, which copied the Asterix comics – Federal Court of Justice – March 11, 1993.

The Heiner Muller’s Germania 3 play, which incorporated passages from the plays of Brecht – Federal Constitutional Court – June 29, 2000.



Federal Constitutional Court – June 29, 2000 –Germania 3 decision:

“It must be possible for the artist to insert protected works into his own creation even if it is not necessarily the author’s own development that the quotation would illustrate. However, the quotation must be used as a tool or vehicle of an artistic opinion expressed by the author”(Apud ESTELLE DERCLAYE, Research handbook on the future of EU copyright, at 47/48)


What are the alternatives for creative transformations?

Resolution of conflicts on a case‐by‐case basis in light of traditional copyright concepts?Granting of CC‐type licenses by authors? (“Free Art License”)Amend the Copyright Act to contemplate a creative transformation exception, provided that such use “does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”?

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