Problems with Copyright and Trade Dress

Gregory Aharonian

One of the reasons to make more use of patents to protect art and entertainment is the avoidance of potential problems caused by logical problems with copyright and trade dress. What follows are excerpts from law review articles written by copyright lawyers, and increasingly patent lawyers, of the increasing difficulties of using and relying on copyright. Since these problems exist to a far lesser degree in the patent world, it is prudent to start making more use of patents to protect your art and entertainment products.

The first step in any reform is to rewrite the Berne Convention.

For an interesting paper exploring the origins of American copyright law, see Hosei University professor Hideaki Shirata's paper titled "Origin of American Copyright".

The idea/expression (non)dichotomy

In the Copyright Act of 1976, the U.S. Congress formally wrote into law a general principle about copyright that had been cavalierly tossed about for decades by lawyers. Congress wrote that copyright protects only "expression", not "ideas", the so-called "idea/expression dichotomy" (in 17 USC 102):

17 U.S.C. 102a Copyright protection subsists, ..., in original works of authorship fixed in any tangible medium of expression ...

17 U.S.C. 102b In no case does copyright protection ... extend to any idea, procedure, process, system, method of operation, concept, principle or discovery ...
But they refuse to define these two terms (in 17 USC 101), not a surprise, given that courts and lawyers before and after 1976 have had zero success in defining these terms "idea" and "expression" (all three groups ignoring large bodies of philosophy and mathematics that have great impact on these issues). A further sign of intellectual contempt is that neither "original" nor "author" is defined in the copyright statutes. Another part of the copyright code, the Visual Artists Rights Act, at (17 USC 106(a)(3)(B), states that "... prevent any destruction of a work of recognized stature ..." without defining the phrase 'recognized stature'.

Yet Congress uses these undefined terms to state something definite -

"[Section 102(b)'s] purpose is to restate, in the context of the new single Federal system of copyright, that the basic dichotomy between expression and idea remains unchanged." (H.R. Rep. No. 1476, 94th Congress, 2d Session 5, reprinted in U.S. Code Cong. & Admin. News 5659, 5670.)
In light of "idea" and "expression" not being defined in statutes, and with a growing number of papers arguing there is no idea/expression dichotomy, this declaration of a "basic dichotomy" is problematic, as is therefore the very foundations of copyright. Artists and entertainers should start giving more thought to using patents for protection, not only in the United States, but in the rest of the world, since similar ill-defined language for "idea" and "expression" appear in the global TRIPS accord and the WIPO and European directives on copyright:
TRIPS: Section 1, Article 9.2 - Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
Similarly in Article 2 of the 1996 WIPO Copyright Treaty.

This sloppy use of language dates back decades, for example, the Final Report of the incompetent CONTU Commission in the 1970s:

The line which must be drawn [to distinguish protectible from unprotectible elements of a program] is between the expression and the idea, between the writing and the process which is described.

But is doing so honest, legitimate or ethical? Or citing such ill-defined reasoning, for example, the 1995 AIPLA Amicus Brief to the Supreme Court in Lotus v. Borland, which approvingly cites the above remarks of both Congress and CONTU. What follows is (very) critical commentary on the ill-defined dichotomy of idea and expression. For critical papers on the equally ill-defined term "original", click here.

For example, in a 1954 paper ("Implied contract and the law of literary property", California Law Review, 1954, 32), Benjamin Kaplan writes about this problem:

But, on reflection, how firm is the distinction between "expression" and "idea"? Let us first admit, as Mr. Kenneth B. Umbreit has observed, that copyright deals essentially with ideas in the ordinary meaning of the term: to copy the so-called expression of an idea is still to copy an idea. A workable distinction between ideas and expression might have been maintained when, as was originally the case, infringement of copyright meant essentially tracking a particular word order. We have come a long way since.
In a 1967 book, An Unhurried View of Copyright, Kaplan traces back in time the problem with separating idea and expression:
In 1870, the [Copyright statute] was amended to allow authors to reserve the right not only to translate their works (pace Justice Grier) but also to dramatize them [Act of 8 July 1870, ch. 230, Sect. 86, 16 Stat. 198). The latter enlargement of the monopoly to cover the conversion of a work from one to another artistic medium, taken together with the Daly decision, put the question whether any line could really be held, even as to imaginative works, between "idea", long supposed to be outside copyright protection, and "form", assumed to be the only thing within it. Was a copyrighted work now to be protected according to its "principle", as McLean thought it should be? The question will recur.
The recurring question thus emerges: "Are dramatizations new product designs of transformed ideas?". Later, in criticizing Judge Hand's abstraction test for lacking precision, Kaplan writes (page 48):
We are in a viscid quandary once we admit that "expression" can consist of anything not close aboard the particular collocation in its sequential order. The job of comparison is not much eased by speaking of patterns, nor is the task of deciding when the monopoly would be too broad for the public convenience made much neater by speaking of ideas and expression.

In a 1967 paper ("Round the prickly pear: the idea-expression fallacy in a mass communication world", UCLA Law Review, 737 [1967]), Robert Libott writes "If this strange dichotomy has any useful and ascertainable meaning at all (a doubt shared by at least two of the major writers in the field [Nimmer and Kaplan]), it must still be suggested that it is a semantic and historic fallacy without meaningful application to the creative process, and that it results at best in judicial anomaly and at worst in substantial injustice."


In a 1985 paper, (Comment: A rose by any other name: computer programs and the idea-expression distinction, 34 Emory L.J. 741 [1985]), John Halvey writes:

It appears, then, that the idea-expression distinction is an anomaly in which the exceptions to the rule are more encompassing than the rule itself. As a basic proposition the dichotomy seems to be both useful and appealing. Any person who is creative or innovative is rewarded while the plagiarist is punished. As the discussion above has illustrated, however, the distinction between the two concepts is hazy, and the application of the doctrine characterized by inconsistency.

Similar confusion is observed in a 1989 paper, (A First Amendment perspective on the idea/expression dichotomy and copyright in a work's "total concept and feel, 38 Emory L.J. 393 [1989]) by Alfred Yen:

The above-described analysis is attractive because it indicates how applying the idea/expression dichotomy can prevent overbroad copyright claims. However, the analysis is deficient in that it provides no definition of what constitutes an idea. To ensure that copyright claims do not result in the monopolization of ideas, courts must necessarily develop concepts and terms which enable them to identify ideas. Otherwise courts would simply have to guess as to whether or not a copyright claim risked the monopolization of ideas, or only expression. The idea/expression dichotomy could become so amorphous that courts would have no principled manner in which to apply the doctrine.

It is not surprising that judges and juries avoiding having to deal with these hazy inconsistencies and amorphous guesses, as Hartwell Beall observes in footnote 76 of his 1993 article, (Comment: can anyone own a piece of the clock?: the troublesome application of copyright law to works of historical fiction, interpretation, and theory, 42 Emory L.J. 253 [1993]):

Furthermore, as an interesting sidenote, many courts may grant summary judgment in order to prevent a case from going to a jury, because juries generally tend to have trouble understanding the complexities of the idea-expression dichotomy. What is protected and what is not proves difficult enough for the court itself.

Indeed, in footnote 6 of their 1977 Krofft decision, the Ninth Circuit confesses that the judges have trouble understanding as well: "Moreover, most of these criticisms are directed at the fact that the courts tend to pay only lipservice to the idea-expression distinction without it being fairly descriptive of the results of modern cases. This is a criticism more of the application of the distinction than of the distinction itself, and can be alleviated by the courts being more deliberate in their consideration of this issue."        No, the distinction itself is where the criticism should be directed.


A similar objection to the idea/expression dichotomy is pointed out in a 1980 analysis ("Dissecting Krofft: an expression of new ideas in copyright?", San Fernando Valley Law Review, 109 [1980]) by Knowles and Palmieri of a 1977 copyright case involving the H.R. Puffenstuff children's television show (Sid & Marty Krofft Television Productions v. McDonald's Corp., 562 F.2d 1157 [1977]):

But Krofft, like all copyright decisions before it, was caught in a semantical trap. It viewed the "idea-expression dichotomy" as fundamental in copyright, and rested much of its analysis on this basis. We have attempted to clarify this misconception. There can be no abstract, inarticulated "idea" separated from its expression. Necessarily there can be only expression of ideas.

What are the authors of this article referring to? In 1977, unable to make any more sense of the idea/expression dichotomy than anyone else ("The difficulty comes in attempting to distill the unprotected ideas from the protection expression."), and unable to delay making such decisions until such time as Congress feels like clearly defining copyright law, the Ninth Circuit Court of Appeals "clarified" such confusion by creating the "intrinsic/extrinsic" dichotomy, in the infamous Sid & Marty Krofft Television Productions v. McDonald's Corp decision.

Yes, for the cynics, more words games. The "extrinsic" analysis is of some work's themes, dialog, mood, setting, pace, characters and sequence of events - i.e. the work's structure and organization, that is, the work's IDEAS. The extrinsic analysis is an "objective measure" made by a judge in a lawsuit (by judges with no formal training in the arts - also, no one familiar with genre theory would ever use the phrase "objective analysis" in this context). The "intrinsic" analysis, presumably of the subjective, concerns details, the specifics, the EXPRESSION of the work. So instead of clarifying this supposed dichotomy, the Ninth Circuit made it a bit more confusing by making everyone have to use additional words, effectively giving us the idea-extrinsic/expression-intrinsic dichotomy.

In this decision, the Ninth Circuit also introduced the strange phrase "analytic dissection" to describe the process a judge does to determine what is intrinsic and what is extrinsic. Strange, in the sense that "dissection" typically means "analyze part by part", so saying "analytic dissection" is like saying "analytic analysis". The patent world has much better terms to describe the judge's process, but then to use them is to concede that much of this stuff should be thrown over into the patent world. "Analytic dissection" is a "repetitive oxyoxymoron".

NOTE: In the 1990s, the Ninth Circuit pretty much conceded that there is no dichotomy, whatever words you use: "... As it has evolved, however, the extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, .." (Apple v. Microsoft). But wait - how can you objectively consider something that presumably has both subjective and objective features? Another quote - "... Under the reformulated extrinsic test, we mean to perpetuate analytic dissection as a tool for comparing not only ideas but also expression." (Brown Bag v. Symantec). But wait - using the same tool to compare two 'different' things usually means the things are NOT inherently different. Another quote - "... panels applying Krofft to literary works have included a lengthy list of concrete elements under the extrinsic test." (Shaw v. Lindhem). But wait - concrete elements, i.e., expressions, being included in the extrinsic test comparing ideas?

I beg - I plead - I beseech - is there not one court that will just come out and say "The idea/expression dichotomy is idiotic, and we and our fellow judges around country will hear no more such cases until Congress cleans up copyright law.".

So whenever you see any lawyer talking about the intrinsic/extrinsic test, do two things, in either order. First, substitute 'idea'/'expression' for 'extrinsic'/'intrinsic', and second, ignore whatever the lawyer is talking about.

For software (another domain struggling with the idea/expression dichotomy), philosopher David Koepsell argues that the structure and functionality of software should have only one form of intellectual property protection, patent or copyright. Koepsell, much like the authors of the Krofft article, chooses copyright, giving up the structured descriptions of patent claims, and ignoring the prohibitions within copyright for protecting functionality and ideas.

In a recent paper on the protection of "styles" ("Style is free: designs beware", European Intellectual Property Review, 2001, 445 ), A. Quaedvlieg writes of these overlaps between style/idea and work/expression:

In the case of models and designs, defining the borderline between potential style and concrete work is fraught with difficulties, in particular as the style may be embodied in one concrete work which causes an integrated overall impression .... The intrinsic unity of overall impression artifacts and the impossibility of dissolving their shape in elements of form and potential style is further illustrated by the fact that there frequently is only a very thin line (or no distinction at all) between the form and/or the style on the one hand and a "product-idea" on the other hand. In these cases, what is called new "style" of that object results, in essence, from the idea of making the shape in such a way that the result is essentially different from the shapes for those objects we have seen before.

Indeed, for some forms of art and entertainment, the artists explicitly reject any lines/dichotomies between idea and expression by rejecting the importance of the expressiveness of their works. At least one art movement, Conceptual Art, takes this position. A founding conceptual artist, Sol LeWitt, writes in a 1967 article, "In conceptual art, the idea or concept is the most important aspect of the work .... all planning and decisions are made beforehand and the execution is a perfunctory affair." (in "Paragraphs on Conceptual Art", Artforum, summer issue, 1967). Igor Stravinsky, in his 1936 autobiography, rejects expression completely:
I consider music by its very essence powerless to express anything whatsoever: a sensation, a phenomenon of nature, or the like.

Pablo Picasso, in a 1935 interview with Christian Zervos (published as Conversation with Picasso), comments:

There is no abstract art. You must always start with something. Afterward you can remove all traces of reality. There's no danger there, anyway, because the idea of the object will have left an indelible mark. It is what started the artist off, excited his ideas, and stirred up his emotions. Ideas and emotions will in the end be prisoners in his work. Whatever they do, they cannot escape from the picture. They form an integral part of it, even when their presence is no longer discernible.

Such sentiments go back thousands of years. For example, Plato writes in his Politicus:

"All the handicrafts possess a scientific content which has grown up along with them and is embodied in their practice. The manufactured article is the joint product of the science and the practice which are combined in the handicraft."

Prof. Amy Cohen, in her 1990 paper "Copyright Law and The Myth of Objectivity" comments on how some artists have rejected the idea of an idea/expression dichotomy:

The continued use of the terms "idea" and "expression" to define the scope of copyright in works of art became increasingly out of step with evolving views of the creative process. Benedetto Croce, for example, wrote in the early twentieth century that artistic creation is an intuitive process, not an intellectual one, and that the essence of artistic activity is not the production of an external physical object, but an internalized aesthetic synthesis of impressions and sensations. In the 1930s, John Dewey wrote that art is a reflection of and outgrowth of the experience of the artist interacting with the materials used to make the art object. Dewey claimed that during this organic, creative experience, the artist's emotions and ideas are transformed and expressed as the artist works with the physical materials. Thus, for Dewey there was no distinction between an artist's abstract idea and the ultimate expression; rather, the work of art reflected the living experience of the artist who created the work.

Part of the conclusion to her article reiterates these artists views, as well as the major problems it creates for judges:

... To the extent that copyright law rests on the view that the government should prohibit copying of expression in order to protect the original artist but allow the copying of ideas in order to encourage the creation of new works, it may be missing the point. There may be no way for the new artist to extract the "idea" without the "expression" of it, and moreover, there may be no point in making that artist attempt to do so because that artist's creation of his or her work may be considered valuable as a reflection of that artist and that artist's definition of what is art.

For these reasons, the idea-expression dichotomy, conceptually grounded in classical and neoclassical views of art that are no longer widely accepted, is doomed to fail. Courts have no philosophical or objective basis on which to rely in trying to distinguish the ideas from the expression in works of art. Thus, the judge's assessment of the artistic value of the work, a subjective determination that reflects the personal values and background of the judge, has filled the vacuum in infringement determinations.

William Butler Yeats, at the end of his poem, Among School Children, has the most eloquent objection to the dichotomy:

How can we know the dancer from the dance?

F. Scott Kieff, law professor at the Washington Univeristy in St. Louis, invented a nice piece of sarcasm:

The 'idea/expression' dichotomy is so ill-defined
that lawyers have no idea how to express it.


Indeed, one writer writes that multiple foundations of copyright have major problems. In his 1991 article, "Copyright at the School of Patent, U. Chi. L. Rev. 119 [1991]), John Shepard Wiley Jr. writes:

Part I of this Article supports the claim that three central elements of copyright doctrine lack justification and coherence. The first confounding element is the law of "idea" and "expression", with its related doctrine of "merger". Although this law sets forth the central limit on the extent of copyright protection, it is cast in conclusory terms that fail to give judges, lawyers, and authors a way to determine its scope. The second conundrum is copyright's test for determining when one work infringes another and, in particular, the appropriate role for expert versus lay opinion. Here the problem is not that the law presents a single agreed-upon standard that is intellectually bankrupt. Rather, the law presents a blizzard of contending positions, with no consensus on rules or even on why the subject producing that blizzard matters at all. The third puzzle is copyright's requirement of originality, which stands as one of the very few criteria authors must satisfy to qualify for copyright protection. The legal definition of originality is strikingly perverse.

The last few decades have seen these and other writings argue that there is no "idea/expression" dichotomy, and that "idea/process" is inseparable from "expression/data", thus illustrating the confusion caused by copyright's use of statutorily ill-defined words such as "idea" and "expression". Such confusion heightens the potential contradiction between Sections 102(a) and 102(b) of the U.S. Copyright Act (a similar contradiction arises in Section 1, Article 9 of the global TRIPS accord). Attempts to resolve this potential contradiction (such as the 1992 decision in Computer Associates v. Altai) increasingly graft patent concepts (process, structure and functionality) onto copyright law in order to separate protectable from unprotectable expression, with questionable success and legality.


Of all of the contempts for art and science seen in copyright law, the worst has to be the use of the word mathematics in the prohibition clauses:
TRIPS: Section 1, Article 9.2 - Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. Similarly in Article 2 of the 1996 WIPO Copyright Treaty.
Similarly we seen in Costa Rican law governing copyright:
Ley No. 6683: Artículo 1 - La protección del derecho de autor abarcará las expresiones, pero no las ideas, los procedimientos, métodos de operación, ni los conceptos mátematicos en sí.
But do any of the copyright lawyers or government officials understand modern mathematics in its full richness to understand what it means to include mathematics in such laws? For the most part, NO, if for no other reason than their legal mistreatment of one form of applied mathematics, software. Most likely these people are thinking of simple mathematics, like Newton's law of motion, F = M a (force equals mass times acceleration). But mathematics in the late twentieth century not only expanded greatly in complexity and sophistication, but expanded greatly in its application not only to the sciences, but also to the arts. It is this latter complexity that is beyond the understanding of the lawyers who have been inserting "mathematics" into the copyright laws, an insertion that is ill-defined and creates more confusion.

Especially in the digital era, copyright lawyers and users are not going to easily continue to be able to ignore the confusion surrounding these ill-defined fundamental concepts of copyright law such as "idea", "expression", "orginal", and "mathematics". Until this confusion is resolved, it seems prudent to make use as well of the patent system whereever possible to protect art and entertainment.

NOTE: that the uncopyrightable 'ideas' of copyright law are equivalent to the patentable non-abstract 'ideas' of patent law is not an explicit part of the patent and copyright laws. Rather, it is seen in statements appearing in court decisions. For example, in the classic IP case Herbert Rosenthal v. Kalpakian, there appears the following: 'When the "idea" and its "expression" are thus inseparable, copying the "expression" will not be barred, since protecting the "expression" in such circumstances would confer a monopoly of the "idea" upon the copyright owner free of the conditions and limitations imposed by the patent law', as well as '.. the production of jeweled bee pins is a larger private preserve than Congress intended to be set aside in the public market without a patent. A jeweled bee pin is therefore an "idea" that defendants were free to copy.'

The arbitrariness of judicial abstraction

For non-literal copyright infringement determination, the arbitrariness of the idea/expression dichotomy forces judges to be arbitrary in distinguishing copyrightable expression from non-copyrightable idea. In his classic 1931 formulation of the "levels of abstraction" test for determining the presence of "substantial similarity" between two script-based works of authorship (in the case before him, two plays), and thus infringement of the copyright in the earlier work by the later work, Judge Learned Hand observed about this arbitrariness (". there is a point ."):

"Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about and at times may consist only of its title; but there is a point in the series of abstractions where they are no longer protected [by copyright] since otherwise the playwright could prevent the use of his 'ideas' to which apart from their expression, his property is never extended." (45 F.2d 119 [1930])
Similar concerns about determining the boundary between idea and expression were expressed 36 years later in a 1986 UK court decision, Plix Products v. Frank Winstone (UK Fleet Street Reports 63).

Judge Hand's test is an ill-defined test that courts have struggled to apply in copyright infringement lawsuits, especially without making use of concepts from patent law. Indeed, Judge Hand admitted his 'test' for separating idea from expression must be applied on a case-by-case basis. In his last copyright case, Peter Pan Fabrics v. Martin Wiener (274 F.2d 487, 489 [1960]), he wrote: "Obviously, no principle can be stated as to when an imitator has gone beyond copying the 'idea', and has borrowed its 'expression'. Decisions must therefore be ad hoc." Thirty years after that comment, Judge Keeton wrote: "It seems the better part of wisdom, if not valor, not to press the search for a suitable bright-line test ... where Learned Hand, even after decades of experience in judging, found none." Lotus Development v. Paperback Software (740 F. Supp. 37, 60 [1990]). In a recent case (Sparaco v. Lawler, August 2002), the U.S. Court of Appeals for the Second Circuit called Judge Hand's test an "endlessly baffling subject".

For example, countless literary works have been based on the general theme "boy meets girl" and at this level of abstraction copyright offers no protection against a third party that "borrows" the theme. However as more and more "incidents", e.g., setting (time and place), plot, sequence of events, interplay of characters, etc. are introduced, there comes a point at which copyright law protects the work's ideas/structure against unauthorized appropriation by a third party regardless of the particular words used by the third party to express those incidents. Professor Nimmer, in his well-known treatise on copyright law, describes this as "comprehensive non-literal similarity", using an example the example of Romeo and Juliet versus West Side Story.

Copyright infringement must be determined on a case-by-case basis, much like the problem of determining obviousness in the patent world, but without structured claims. Courts must rely on the above comments of Judge Hand for guidance. The problem for the copyright world is that increasingly such copyright determinations look like patent analysis, as lawyers and courts struggle with idea and expression. One of the most recent attempts to provide a useful implementation of Judge Hand's "test" clearly illustrates this (futile) struggle. In Computer Associates v. Altai (982 F.2d 693 [1992]), the Second Circuit introduced the Abstraction-Filtration-Comparison test for software copyright. But to many, Abstraction is little more than the patent world's Markman hearing without claims, Filtration is the patent world's Section 102 novelty determination, and Comparison is the patent world's Section 103 obviousness determination. Copyright enforcement is little more than a patent registration system where the claims are "drafted" at the infringement analysis stage. The Second Circuit concedes as much about the superiority of the patent system, saying in the decision:

- "... patent registration, with its exacting up-front novelty and nonobviousness requirements, might be the more appropriate rubric of protection for intellectual property of this kind."

Indeed the district court from which this was appealed, plus another commentator cited by the Second Circuit, had argued that all of this should be thrown over into the patent world with its formal 102 and 103 tests in light of explicit structural claims. Even worse, the Altai court partly based its three-part test on a three-part test proposed by Judge Keeton in his Lotus v. Paperback decision (which was later overturned). Not surprisingly, the Altai test has been criticized:

And because the court was forced to maintain the fiction of handling software with copyright, Altai's reasoning contributed to the confusion. "... both the Whelan test and the Altai test fail to sufficiently distinguish ideas from expression." - see {DIXON}. "However the failure of the court to be explicit in this regard [only code is protected against literal copying] has left most later courts still floundering, even where they purport to follow the Computer Associates analysis. The basic question that Computer Associates failed to address is how any nonliteral program aspect that somehow survives the filtering procedure can be deemed expressive." - see {KARJALA}. The Altai test is "neither useable nor comprehensible ... a legal Chernobyl" - see {CLAPES}.

Again, from his 1991 article, "Copyright at the School of Patent, U. Chi. L. Rev. 119 [1991]), John Shepard Wiley Jr. writes of the courtroom deficiencies of the idea/expression dichotomy, abstractioning, and tests of deciding when idea and expression merge.

This statement of the idea/expression dichotomy expresses a crucial limitation of the property right by giving every admitted copier a potential defense. The doctrine's function is essential, but Judge Hand framed the issue metaphysically, and in a way that gives metaphysics a bad name. As he stated it, the idea/expression doctrine is incoherent and lacks any stated alternative foundation. The result is a doctrine that announces results but does not determine or justify them.

1. The false dichotomy of idea and expression.

This law is founded on a claimed polarity whose opposites can turn into each other with alarming ease. In common usage, an idea is an intangible and abstract thought. But an idea inevitably becomes a concrete expression as soon as a human states it. That is, an idea cannot be defined or communicated to another person without becoming an expression, a particular and precise collection of meaningful symbols. For example, I might think about "the comedy of warring clans spawning offspring who cross clan barriers". But as soon as I utter those words, I have made my idea into expression -- literally.

By the same token, an expression always is an idea, a concept that can be taken into the brain and imagined in greater detail and in different forms. Anna Karenina, for instance, seems like a fully elaborated expression. But Tolstoy's expression leaves countless creative options for even the most devotedly authentic interpreter. The pages and pages of print were but an idea for the writer who penned the screenplay for the movie, the director who directed it, the actors who animated it, the cinematographer who shot it, and the engineers who made its footfalls sound cheerfully solid or spookily hollow. Tolstoy gave them all an idea, but just an idea, about what to do. And they in turn expressed themselves -- literally.

The terms "idea" and "expression" gave Judge Hand no guidance at all in deciding whether Universal had acted lawfully. Suppose I describe what Universal copied from Nichols as "the comical story of the conflict between a New York Jewish family and an Irish Catholic family in which the children fall in love, their fathers oppose their marriage plans on cultural and religious grounds, the kids get married secretly, the fathers become furious, but eventually there is a reconciliation". This plot description is simultaneously an idea that can be further elaborated (as for instance Universal's film did) and an expression in and of itself (a meaningful communication comprised of fixed symbols). Alternatively, imagine the text of the play Abie's Irish Rose lying before you in a binder, as though Nichols had just finished writing it. That text also is both an idea susceptible of further elaboration (either in print or in a different medium) and an expression, complete in and of itself. Judge Hand officially attributed the plot description to the public domain as idea and the text of the play to Nichols as expression. Yet, as a literal matter, the doctrine entitled him to switch the assignments. There is, after all, nothing literally wrong with calling a spade a spade -- or a playing card -- when both descriptions fit exactly.

This literal analysis shows that the supposed idea/expression dichotomy does not identify two boxes at all, but only a single battered crate. It flunks the basic test for useful legal distinctions because its falsely dichotomous character subverts its ability to generate robust conclusions. Because the rule provides no technique for excluding competing resolutions, its use is always incomplete and always susceptible to critique by its own terms. This weakness means that litigants and judges can run amok with the incoherences of the idea/expression dichotomy and the rule cannot chide them for it.

2. The measurelessness of abstraction.

One might accept this literal critique but still respond that the idea/expression doctrine, as Judge Hand defined it, is not truly about ideas and expressions. Rather, one might argue, the doctrine is about more abstract or less abstract versions of a text, in that it bars free riders from copying in detail but permits them to reproduce a relatively abstract version of a work.

This account would conclude that Universal copied lawfully because, rather than taking Nichols's play verbatim, it took only a highly abstracted version of the play. Yet this nonliteral "series of abstractions" account also fails. It depends on, but fails to deliver, a reliable yardstick to measure the property. When property owners want to build a wall 25 feet from their front door, they can be sure that a foot means 12 inches. Inches are stable and verifiable units. But the Bureau of Weights and Measures keeps no standard for measuring abstraction, and it is impossible even to imagine what sort of scale could gauge this quality reliably. We have no ruler for a problem in which measurement is crucial.

Neither do the particular facts of decided cases create a useable ruler from precedent. One might wish, for instance, that Judge Hand's decision in Nichols defined the degree to which a film-maker was free to take from the works of playwrights without their consent. But Judge Hand himself foiled this hope six years later in his celebrated opinion in Sheldon versus Metro-Goldwyn Pictures Corp., which together with Nichols created a Hand-made dyad that every copyright casebook author since has included.

In Sheldon, Judge Hand drew a sharply different conclusion from facts superficially similar to those in Nichols. The defendant's movie Letty Lynton and the plaintiff's play Dishonored Lady were both based on the actual exploits of the nineteenth-century Scot Madeleine Smith. These stories recounted "the acquittal of a wanton young woman, who to extricate herself from an amour that stood in the way of a respectable marriage, poisoned her lover". The court held that "the plaintiffs' originality is necessarily limited to the variants they introduced" to the historical facts used in their play. But Judge Hand found that this contribution by the plaintiffs had been large; the play's authors had taken "the merest skeleton" from historical fact, and "[t]he incidents, the characters, the mis en scene, the sequence of events, were all changed. . . ." The defendants' movie, moreover, had borrowed many details of characterization, the same mis en scene, and considerable and particular parallelisms of incident. Hand concluded that "these details in the same sequence embody more than the 'ideas' of the play; they are its very raiment".

My point is not that the two opinions are inconsistent; later I shall argue just the opposite. Nor do I suggest that the Sheldon opinion casts no light on the extent of copyright owners' rights. Repeated decisions can enable one to detect and articulate an implicit doctrine or useful process of reasoning at work, something I next attempt. My point here is that Nichols's series of abstractions imagery did not assist Judge Hand in deciding Sheldon. In defending his resolution in light of Nichols, Judge Hand said only that the moviemakers were within their rights if they used "only the more general patterns [of the play]; that is, if they kept clear of its 'expression'". In reverting to the term "expression", Judge Hand begged the very question at issue, effectively confessing that our language's descriptions of the varieties of abstractions do not afford a reliable rule of decision.

My charges of unmoored doctrinal and hockery find support in, of all places, the language of Nichols. The author of the abstractions test jolts us by endorsing rather than rebutting the critique. Judge Hand agreed that "the decisions cannot help much in a new case" -- a conclusion that, if true, largely destroys the supposed rule of law in a realm of statutory silence. After describing the series of abstractions that he offered as a technique for locating the boundary between the privately owned expression and the publicly available idea, Judge Hand jarringly announced that "[n]obody has ever been able to fix that boundary, and nobody ever can". He concluded with the lament that "we are as aware as any one that the line, wherever it is drawn, will seem arbitrary. . . ." In another opinion he declared, "Obviously, no principle can be stated as to when an imitator has gone beyond copying the 'idea', and has borrowed its 'expression'. Decisions must therefore inevitably be ad hoc."

These confessions are startling. They read as though Duncan Kennedy had traveled back in time and convinced a fixture of the judicial establishment to plant subversive seeds for his followers to harvest a half century later. Agreeing with this criticism, Judge Frank Easterbrook has written that although Hand's "opinions still dominate this corner of the law, . . . [his] 'abstractions test' . . . . is not a 'test' at all. It is a clever way to pose the difficulties that . . . . does little to help resolve a given case. . . ."

3. The manipulability of merger.

Later opinions add material for this critique by embroidering the idea/expression dichotomy with the thread of the so-called merger doctrine. Merger doctrine holds that copyright protection lapses for a work in which idea and expression "merge" or become "inseparable." We should become suspicious upon hearing that it is possible for two supposedly dichotomous concepts to merge into inseparable unity. The doctrine of merger announces this phenomenon, however, whenever "there are no or few other ways of expressing a particular idea" apart from the plaintiff's particular expression. In such instances, courts claim to break with their normal practice by giving later authors freedom to copy the first author's expression. The rationale is that this freedom is necessary to liberate for copying the first author's idea -- which axiomatically can never be subject to copyright protection.

The case commonly cited as the doctrine's source and its classic illustration, even though it failed to use the word "merger", is Morrissey versus Proctor & Gamble Co. Morrissey sued Proctor & Gamble for copying the rules for a promotional sweepstakes contest based on participants' Social Security numbers. Notwithstanding the nearly verbatim copying, the court worried that "to permit copyrighting would mean that a party . . . by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance". The court thus excused Proctor & Gamble's copying because Morrissey's idea (or substance) and expression had merged.

The Morrissey result probably makes sense. But indeterminacy overwhelms its logic of merger. Before a court can decide whether "there are no or few other ways of expressing" plaintiff's idea, it must define the plaintiff's idea. No unique abstract description or idea is self-evidently appropriate; instead there exists, as Judge Hand pointed out, "a great number of patterns of increasing generality [that] will fit equally well, as more and more of the [detail] is left out". As usual, the crucial doctrine remains mute about how far up the scale the judge should proceed before testing the number of alternative expressions. Without a scale, it is impossible to say. Nonetheless, cases applying the merger doctrine inevitably do say, settling on an implicit specification of idea that confines alternative means of expression to a relatively small number. Also inevitably, however, a variety of alternative definitions remains both conceivable and consistent with the malleable doctrinal terms. The merger doctrine's use of idea and expression thus is characteristically open-ended -- useful for announcing a decision, but not for generating or justifying one.

To demonstrate a critique that applies to every case invoking or rejecting the merger doctrine, observe first that the Morrissey court implicitly defined the idea as "advertising using a sweepstakes based on social security numbers". Defining idea so narrowly does leave a relatively small number of alternative expressions. (Actually, the number of equivalent rephrasings probably runs to the hundreds or thousands, but this quibble is at once digressive and fantastically tedious to verify.) We can multiply these alternative possibilities to a countlessly large number and thus negate merger simply by choosing a more abstract definition of the idea. For instance, it is equally accurate to define the idea of Morrissey as "advertising using a sweepstakes based on a number". One can generate contest numbers in an endless number of different ways: phone numbers, birthdays, addresses, guesses about the daily volume of the New York Stock Exchange or the point spread in some athletic contest, or eight digit numbers picked at random. In doctrinal terms, merger dissolves and Morrissey wins. To the same end, we could define Morrissey's idea simply as "advertising using a sweepstakes," or even more simply as just "advertising". The merger doctrine contains no logical rule for selecting the decisive level of abstraction.

As I have already said, Morrissey's outcome probably makes sense, as do the outcomes in Nichols and Sheldon. But the doctrine that justifies these results is inconclusive and ultimately arbitrary. Every mention of idea and expression states legal conclusions while doing nothing to justify them. Every utterance of the terms should prompt lawyers and judges to ask, "Why does copyright law allow defendants to copy this thing labeled an 'idea'? How do we know that plaintiffs cannot appropriate some other thing called 'expression'?" To these basic questions, the doctrine of idea and expression can offer no answers. The kindred merger doctrine merely buries more deeply the questions it begs.


The Altai test - copyright law plagarizing patent methods

Of all areas of copyright law plagued by the legal fiction of an "idea-expression" dichotomy and the resulting arbitrary judicial abstraction, it has been software copyright law (which should be an oxymoron). An analysis used by the courts to handle software, and made use of for non-software cases, is the abstraction-filtration-comparison test from the 1992 Computer Associates versus Altai decision (2d Circ. - 982 F.2d 693 [1992]).

Loosely, copyright infringement analysis became a bottom-up Markman hearing without patent claims (abstraction), a novelty analysis in light of scenes-a-faire and public domain prior art (filtration), finishing with an obvious analysis in light of the "golden nuggets" that remain (comparison). Indeed the court almost concedes this plagarism of patent methods in a comment - "... patent registration, with its exacting up-front novelty and nonobviousness requirements, might be the more appropriate rubric of protection for intellectual property of this kind.".

Even worse, the Altai court based this three-part test on three-part tests proposed by Nimmer in his treatise (the Nimmer of the discredited 1970s CONTU commission) and Judge Keeton in his Lotus v. Paperback decision (which was later overturned). Because the court was forced to maintain the fiction of handling software with copyright, Altai's reasoning contributed to the fiction, as some quotes from law review articles assert:

"... both the Whelan test and the Altai test fail to sufficiently distinguish ideas from expression"

"However the failure of the court to be explicit in this regard [only code is protected against literal copying] has left most later courts still floundering, even where they purport to follow the Computer Associates analysis. The basic question that Computer Associates failed to address is how any nonliteral program aspect that somehow survives the filtering procedure can be deemed expressive."

The Altai test is "neither useable nor comprehensible ... a legal Chernobyl"

Many copyright cases since then have cited Altai when trying to apply copyright law to the structures, processes and methods of products that are the subject of copyright lawsuits. It is as if the only way the consistent aspects of the foundations of copyright law (17 USC 102) can be made legally functional is to plagarize methods from patent law, implicitly conceding that none of these actions belongs under copyright law.

Copyright lawyers and users are not going to easily continue to be able to ignore the growing use of patent concepts to solve copyright dilemmas, without undermining the very assumptions that are the foundation of copyright. Again, it seems prudent to make use as well of the patent system whereever possible to protect art and entertainment, as well as being more honest.

Contradictions between art theory and copyright

Copyright laws not only make definitions of what art is, but also draw lines between which types of art are protectable with copyright laws. But from the point of art theory, these definitions and lines are arbitrary, reflecting a bias towards certain art theories for historical reasons, not axiomatic reasons. Art theory seems more compatible with patent law, which has few - if any - lines left between what is patentable and what is not patentable. But between copyright law and art theory, there seems less compatibility and more contradiction.

Anne Barron, professor of Law at the London School of Economics, has written an article discussing this contradiction in the context of the visual arts, Copyright Law and the Claims of Art, in which she discusses this contradiction from the point of view of copyright law in the United Kingdom. Her comments, though, are global in concern. Some excerpts.

Copyright law in the United Kingdom has a troubled relationship with the visual arts. Though ostensibly designed to encourage their progress in an even-handed and value-neutral manner, it effectively discriminates between them: it protects the established arts of painting, sculpture, architecture, photography and drawing, for example, but implicitly excludes some contemporary practices in the visual arts completely (e.g. body art, land art, and performance art in general); radically limits the protection availble to others (e.g. installation art, conceptual art, minimalist art); and condemns outright those forms which contradict its rules (e.g. appropriation art).
Romanticism, after all, is an ideology in which artists are held up as uniquely sensitive souls, valiantly transcending the prosaic routines and necessities of everyday life to express their genius in works of the imagination: it follows that a copyright system informed by Romanticism must be one which offers protection to these exceptional but fragile individuals.
Note: if this isn't great sarcasm, it should be.
"copyright [cannot] exist in a work produced as a true collective enterprise (rather than by one or more identifiable or anonymous 'authors'); a work cannot be copyrighted unless it is 'fixed' [which excludes body art, land art and performance art in general]; copyright does not extend to works that are not 'original' [which rules out the art of the readymade and appropriation art in general]; and copyright does not protect 'basic' components of cultural productions [and so radically limits the protection awarded to minimalist and conceptual art]."
Yet the more or less contemporaneous efforts (by Lessing, Mendelssohn, Herder and others) to classify the particular arts, and to demarcate the boundaries between them at the level of their distinctive modalities of expression, have been ignored.
It is precisely the status of these distinctions, hierarchies and exclusions that is at stake in much contemporary art practice and criticism. As Douglas Crimp pointed out in 1979, it was theatricality, and with it temporality, that came to characterise much of the art that followed minimalism in the 1970's. "The mode that was thus to become exemplary during the seventies was performance.and not only that narrowly defined activity called performance art, but all those works that were constituted in a situation and for a duration by the artist or the spectator or both together." This can be seen as part of a broader tendency towards the production of generic art, that is, "visual" art that has severed its ties with the specific crafts and traditions of either painting or sculpture.
If they are characterised as art by the art world, this is not because they can be described as paintings or sculptures, but simply because their making or doing is accompanied by the claim "this is art" and calls for an aesthetic judgement on the part of the viewer. Yet copyright law in the U.K. has no category of "art", and it does not demand of the objects it protects that they elicit an aesthetic response. Copyright law therefore cannot recognise whole swathes of contemporary practice in the visual arts as having any claim to legal protection as such.

This categorization conflict between law and art can be seen in other areas of law. California Civil Code Section 986(c)(2) is as follows: "Fine Art" means an original painting, sculpture, or drawing, or an original work of art in glass, the last clause dealing with glass being an arbitrary amendment made in 1982, supposedly at the behest of some politician's wife, for reasons having nothing to do with clarifying art categories. A California state court decision doesn't even try to offer categories: "A thing is a 'work of art' if it appears to be within historical and ordinary conception of such term, and a thing is a 'design' by the same token; and works of art and designs are not necessarily distinct one from the other, and neither goes to functioning of a utility." (Rosenthal v. Stein, 205 F.2d 633 [1953]).

More excerpts:

As far as the artist is concerned, two consequences flow from this way of thinking about the objects of copyright. First, it has resulted in their being disaggregated into a series of classifications and sub-classifications that appear highly anomalous from the perspective of the contemporary artist, whose practice can no longer be confined by the categories of painting, drawing, sculpture, collage, engraving, architecture or even photography. There is no specific sub-classification of the "artistic work" category that could accommodate installation art, video art, environmental art, body art, performance art, mixed media works or most conceptual art; nor is there a general overarching category of "art" that could accommodate the products of these practices instead. This owes far less to deliberate aesthetic discrimination than to the peculiarities of copyright's legislative history: in particular, the manner in which techniques of legislative drafting have been deployed to manage the pressure exerted on the statutory framework of copyright aw by the interest groups who have successfully pressed their claims in the political arena. Yet the effect of this taxonomic approach to defining the objects of copyright is certainly discriminatory, simply because the narrowness of the law's classifications causes it to fail to reflect the diversity of contemporary art. Second, the manner in which the privileged classifications of painting, drawing, sculpture, collage, engraving, architecture and photography are defined as a matter of copyright law has little to do with how contemporary practitioners of these arts would define their own practice. This is because the law, as shall be demonstrated below, defines each of these types of artistic work in terms of the differences between their artefactual conditions and the modes by which they are perceived by the senses: differences which are supposed to be aesthetically neutral.
Although this attentiveness to the particularities of artistic methods, means and materials has received no attention at all from copyright scholars, it is here, I argue, that the most interesting parallels between copyright law and aesthetic theory are to be found. For in eschewing the category of "Art" and focusing instead on defining instances of "artistic work" such as painting and sculpture in purely technical terms, legal discourse replays - in its own key - one of the oldest themes in the history of art theory. The implications of this paradox have only become obvious and important in the wake of the turn from specific to generic art: it is because copyright law assumes that "Art" manifests itself only in a determinate array of species such as painting and sculpture that it cannot accommodate any artistic gesture that is not realised in one or other of these forms. Thus it is precisely in its blindness to "Art", I would argue, that copyright law's discriminatory and exclusionary potential resides.
One further legal concept deserves some attention at this point, however, and this is the concept of the "work" itself. For although copyright law avoids defining its objects in terms of an overarching conception of Art, it does invoke an overarching concept of the work. What then is a work in law? The concept is nowhere defined in the legislation, but case law shows that certain features are consistently predicated of every entity that is deemed by the courts to be a copyright work, quite apart from and prior to the question of whether it qualifies as a particular kind of work (e.g. an artistic work). First, there can be no copyright work without some human author who can be said to originate it. To gain the protection of copyright law, an entity must be capable of being conceived of as the result of some (more than minimal) human intervention in the "real", whether or not this intervention is mediated by mechanical or other technical means. Thus a landscape or scene cannot itself constitute a copyright work, although the image yielded by a photograph or painting of the same landscape can. Second, a copyright work must be capable of certain definition. There are two means, in turn, by which copyright law ensures that works will have clearly delineated boundaries: through the principle that copyright extends only to the expressive form that ideas assume and not to ideas as such; and by requiring that works must be manifest to the senses in some way, either because they are recorded, or fixed, in some material embodiment, or because the process of their creation makes this inevitable. In other words, copyright law demands both that a concrete expressive form be conceptually separable from an "underlying" realm of general ideas and so attributable to some determinate author, and that this (intangible) expressive form be perceptible to the senses. There is no doubt that this way of thinking about the "object" of copyright operates now to deny or radically curtail protection for many contemporary practices in the visual arts, and a few examples will suffice to illustrate this point. The apparently uncontroversial principle that every protected work must be attributable to the creative efforts of some determinate author is of major significance here. It cannot comprehend the art of the readymade, which of course denies the necessity of the artist's hand; nor can it accommodate the site-specific art work.much less one that depends for its completion on the participation of the spectator - because the principle implies that every aspect of a work must be attributable to its creator. The notion that a work is an (intangible) objectification, in a bounded expressive form, of human creativity is similarly crucial to the capacity of copyright law to accommodate contemporary visual art, for it excludes any art practice that resists its own reification: conceptual art, some of which liquidates the object entirely; and performance art, which yields an event unfolding in time rather than a spatially delimited artefact. The requirement of embodiment or fixation is no less important: it has the consequence that any form of artistic endeavour which does not yield some tangible thing or some record of an event, performance or "happening", cannot be or generate anything that constitutes a work in law. Finally, the concept of the work also imposes constraints on the kinds of tangible things in which the work can appear: the materialisation of the work cannot be a human being as such; it must arguably be reasonably permanent; and it cannot be liable to decay, disappearance or continuous change. The implications of all this for body art, installation art, environmental art, kinetic art, and any art which involves the use of organic or unstable components should be clear.
Section 4 of the Copyright, Designs and Patents Act 1988 lists an array of entities as belonging to the category of "artistic works", and thus as entitled to copyright protection. A number of points have already been noted about section 4: the absence of an overarching concept of "art" from the section, its taxonomic approach to the definition of "artistic work", and the exclusion of any criterion of artistic quality from the definition of most of the entities listed in the section. Here, attention will be drawn to a further peculiarity of the section: everything listed there is a tangible thing, whereas the works protected by copyright law are of course intangible. True, the courts have repeatedly stressed - although this is nowhere expressly stated in the legislation - that what distinguishes artistic works from other categories of protected work is that they contemplate material which is "visually significant", thus emphasising that what section 4 protects are visual representations (in two or three dimensions), which are embedded in physical things. Nonetheless, I will argue here that the section's apparent tendency to (con)fuse the tangible and the intangible is replicated in the approach taken by the courts to the interpretation of section 4. The courts, that is to say, have propagated a tried and tested method.familiar from the very earliest period of copyright's application to the visual arts - of defining paintings, sculptures, engravings, drawings, collages and so on by focusing on the material artefacts through which visual representations of these kinds are "normally" made manifest, and upon the crafting processes which "normally" result in these artefacts.
This can be illustrated first in relation to the difficulties that have arisen over the meaning of "sculpture" and "engraving" in copyright law. As long as the materials by which sculptures were "normally" made, and the "normal" manner of their making, distinguished them clearly from other kinds of object, the lack of a criterion referring to their artistic quality was not experienced as creating definitional problems. However, twentieth century developments in sculpture (the shift from casting and forming to the construction of "sculptures" using pre-fabricated materials) have made it possible to argue that prototypes for ordinary, industrially manufactured objects of commerce are also sculptures, and so protected from copying by the manufacturer's trade rivals. As long as judges continued their past practice of invoking physicalist definitions of sculpture focusing on the character of the material object and the processes by which it was made, it was thus inevitable that industrial prototypes would gain the protection of copyright law. Yet this conflicted with the well-established policy of not allowing manufacturers to avail of copyright to monopolise the shapes of objects - particularly functional objects.on the ground that otherwise, competition between manufacturers would be needlessly impeded.
The absence of a definition of "artistic" in law - and the uncertainty to which this in turn gives rise - has been confronted from a different direction in cases where, although there is no doubt that the work in issue is protected by copyright, it is not clear what kind of work (literary, dramatic, musical, artistic) it "essentially" is. Here the burden of definition is entirely borne by criteria derived from the manner in which the various categories of protected work are perceived by those who experience them. Thus an artistic work, it is generally conceded, is essentially something which can be appreciated by the eye. Of course, the same could be said of certain kinds of dramatic work - mimes, for example - but here the courts would invoke a further distinction between visual experiences that unfold in time, because they involve action, and those that exist "instantaneously", as it were, in space. The latter, presuming always that they are original products of an author in the sense outlined above, and fit within one of the categories listed in section 4, are artistic works; the former would be dramatic works. Against this background, one can only wonder about the legal status of pieces such as Cornelia Parker's "The Maybe" (1995), where the artist "exhibits" the motionless form of actress Tilda Swinton as she lies asleep in a glass case. Further categorisation difficulties arise in relation to hybrid artworks such as word paintings: works comprised of sentences painted on canvas with paint. Are these artistic works under section 4, or literary works under section 3, or both? The "circuit diagram" cases are relevant here. It has been pointed out in several cases that circuit diagrams contain information about the components of a circuit and how those components are connected to each other, and that they convey this information in a form of notation, i.e. engineers, notation. Therefore, it has been argued, they qualify as literary works within the meaning of section 3 of the Act - "any work . . . which is written" in any form of notation or code (and therefore capable of being read), even though ostensibly they are diagrams, and so also artistic works within section 4. Jacob J. responded favourably to this argument in Anacon Corporation Ltd v. Environmental Research Technology Ltd. In Electronic Techniques (Anglia) Limited v. Critchley Components Limited, however, Laddie J - noting that the correct identification of the particular category into which a work fits can be of importance in determining both the duration and the scope of the copyright in it - insisted that there are compelling arguments (presumably arguments from legal certainty) for confining the author of a "borderline work" (i.e. one that may fit into more than one category) to "the category which most nearly suits the work in issue". However, since determining this category will in turn, necessarily, involve difficult assessments about which opinions may reasonably differ, legal certainty is hardly served by Laddie J's judgement in this case either. What is really needed, though lacking from both legislation and case law, is a reliable criterion, more substantial than that of "visual significance", for distinguishing artistic works from other kinds of protected subject matter.
It has already been noted that these discriminatory tendencies are bound to appear anachronistic from the perspective of the contemporary artist. More fundamentally, however, they proceed from contradictions that are internal both to artistic Modernism, and to the copyright system's attempts to deal with artistic works. In both cases, the contradictions revolve around the relationship between art and objecthood. As we have seen, copyright law has been designed in such a way as to avoid giving judges licence to enforce their own subjective aesthetic preferences in the process of adjudicating in copyright disputes, and judges themselves have attempted to further this policy by defining artistic works in technical, "materialist" or "physicalist" terms. However the literal objectivity of this approach has had two peculiar consequences. On the one-hand it has led copyright law to protect ordinary items, like the frisbee or the rubber car mat, which have little claim to creativity (which contradicts copyright's actual purpose of confining its interference with competitive markets only to the extent necessary to encourage innovation). On the other hand it has led copyright law to exclude some art forms from its protective remit completely (which contradicts the rhetorical claim that copyright's purpose is to encourage the progress of the arts). The result is that copyright law's conception of the artistic work now faces a crisis of credibility similar to that suffered by the medium-specific artistic Modernism preached by Clement Greenberg and others in the 1960's, although for different reasons.

Even something as simple as the concept of an "author" is grounds for conflict between copyright law's need for a distinct author (a need all the harder to meet with copyright law not defining "author" in the statutes) versus the art world's amorphous view of what an author is, an amorphous view captured well in a February decision 2000 from the Ninth Circuit (Jefri Aalmuhammed v. Spike Lee, 202 F.3d 1227 [2000])

Who, in the absence of contract, can be considered an author of a movie? The word is traditionally used to mean the originator or the person who causes something to come into being, or even the first cause, as when Chaucer refers to the "Author of Nature". For a movie, that might be the producer who raises the money. Eisenstein thought the author of a movie was the editor. The "auteur" theory suggests that it might be the director, at least if the director is able to impose his artistic judgments on the film. Traditionally, by analogy to books, the author was regarded as the person who writes the screenplay, but often a movie reflects the work of many screenwriters. Grenier suggests that the person with creative control tends to be the person in whose name the money is raised, perhaps a star, perhaps the director, perhaps the producer, with control gravitating to the star as the financial investment in scenes already shot grows. Where the visual aspect of the movie is especially important, the chief cinematographer might be regarded as the author. And for, say a Disney animated movie like "The Jungle Book", it might perhaps be the animators and the composers of the music.

The archaicness of independent creation

Searchable databases for art and entertainment

Unlike the patent system, the copyright system allows independent creation as a defense to infringement, that is, if someone independently invents the same work as yourself, you can't stop them from making and selling copies. The defense is allowed mostly for one reason - the supposed difficulty in searching the "prior art" of copyrighted materials (and common parts of copyrighted materials, i.e., scenes-a-faire) as opposed to the searching the prior art for technical inventions. Additionally, as discussed below, there are economic reasons for not allowing independent creation.

However, in the current era of global networks allowing easy access to large databases of information on copyrighted materials, this justification is increasingly unsupportable and unjust. In their 1989 paper, "An economic analysis of copyright" (18 J. Legal Studies 325), Landes & Posner write of this supposed difficulty of copyright searching as opposed to patent searching:

"The first is the added cost to the author of checking countless numbers of copyrighted works to avoid inadvertent duplication. .. A patent is issued only after a search by the applicant and by the Patent Office of prior patented inventions. . The procedure makes it relatively easy for an inventor to avoid accidentally duplicating an existing patent."

Here the authors ignore the patent system's difficulties in searching of the non-patent prior art. And for non-patent prior art, there are "countless numbers" of published works that should be searched, but rarely are (except during patent litigation). Even for patent prior art, there are substantial numbers of patents that issue that are invalid in light of previously issued patents, because neither the patent applicant nor the Patent Office were able to find the previously issued patents. Landes & Posner continue on with the searching difficulties of the copyright world:

"There are billions of pages of copyrighted material, any one page of which might contain a sentence or paragraph that a later writer might, by pure coincidence, duplicate so closely that he would be considered an infringer if he had actually copied the words in question or if copying were not required for liability. What is infeasible for the Copyright Office is also infeasible for the author. He cannot read all the copyrighted literature in existence (in all languages, and including unpublished works) in order to make sure that he has not accidentally duplicated some copyrighted material."

A recent decision, Ty Inc. v. GMA Accessories (132 F.3d 1167 [1997]) over Beanie Babies, mentions the supposed difficulties of searching:

The practical basis of this rule is that unlike the case of patents and trademarks, the creator of an expressive work - an author or sculptor or composer - cannot canvass the entire universe of copyrighted works to discover whether his poem or song or, as in this case, "soft sculpture", is identical to some work in which copyright subsists, especially since unpublished, unregistered works are copyrightable.

As more and more databases of information on millions of works of music, movies, television, paintings, etc. are made available over the Internet (for example, the 2001 edition of FullText Online Sources lists 17,000 online fulltext databases, while the Writers Guild of America archives over 40,000 scripts a year), the ability to search the "prior art" for these works becomes no more easy or difficult than searching through databases of information on millions of works of mathematics, physics, chemistry, electronics, etc., these latter databases corresponding to hundreds of millions of pages of materials which are some equivalent in complexity (especially for searching) to billions of pages of copyrighted materials due to the presence of mathematical expressions.

NOTE: for software copyright, the difficult-to-search argument completely breaks down, since the same types of software are being searched for over in the patent world.

Whether the numbers are in the millions or billions, in light of database retrieval systems such as Google which allow the easy searching of billions of Web pages and images and sound clips, increasingly the ability to do, and the quality of, searches of "prior art" for copyright analysis purposes converges to that of searches for patent purposes. As such, there is no logical support for the independent creation defense. In late 2003, announce a new feature - being able to search the fulltext of many of the books they sell - initially over 33 million pages from 120,000 books. About the same time, the British Broadcasting Corporation announced that it is considering making all of its vast archives of text, audio and images available for free over the Internet.

As the grounds of the independent creation defense continue to crumble due to the growth of global public-accessible database search systems, it seems prudent to make use as well of the patent system whereever possible to protect art and entertainment.

Searchable databases for art and entertainment


Another reason to reject the independent creation defense is based on economic arguments. In a paper titled "A property rights theory of the limits of copyright", Prof. Norman Siebrasse discusses the benefits to the patent system of NOT having an independent creation defense:
A more persuasive answer [for why ideas should be protected by patents, NOT copyright] focuses on the fundamental difference between copyright and patent, namely that in patent law independent creation is not a defence to an infringement action. While this feature of patent law is traditionally perceived as the source of patent-race problem, in fact it mitigates the problem of rent-seeking as compared to a copyright style regime when independent creation is likely.
As we have already noted, the potential for a patent race problem arises because the private reward from a patent is greater than the social contribution of the first inventor. But the fact that the first inventor will reap a reward which is greater than her contribution does not in itself create any inefficiency, as it simply represents a wealth transfer from subsequent users to the first inventor. The inefficiency arises in the potential for a race to capture the prize by being the first to invent. Since the second inventor gets nothing, if there is more than one potential inventor, each will increase R&D spending in order to bring forward their own expected invention date and thereby capture the patent prize. Each inventor will be willing to increase their investment until the expected value of the patent equals the total investment. Given diminishing marginal returns to the rate of R&D expenditure, this will increase the total resources used to create the invention. In the aggregate, the individual inventors will be willing to spend an amount equal to the appropriable value of the patent prize. Except for marginal inventions, this will be socially inefficient, since the socially optimum R&D expenditure maximizes the social value of the invention less the cost of invention. In the race to capture the patent prize, the inventors may dissipate the full appropriable value of the work over the patent period. This may even lead to net losses, since the potential dissipation may be greater than the value of the first creator's contribution.
But a race requires more than one entrant. If a single inventor knows that he is the only one working on a particular innovation, he will not dissipate the appropriable value of the patent in R&D, but rather will choose a more leisurely investment schedule which will maximize his private return. More generally, an inventor will attempt to maximize his expected return, and his expected return depends on his expectations regarding other potential inventors. If he is uncertain as to whether there are other inventors working on the same invention, he will reduce his R&D expenditure in order to increase his profits in the event that he is the first to invent. Put another way, the patent race will only dissipate the full appropriable value of the invention if the desirability of the invention is common knowledge, and the knowledge that it is common knowledge is also common knowledge.
The advantage to patent protection then, is that property rights are granted at a time when the desirability of the invention is not yet common knowledge. Thus Kitch argued that the patent system functions in part to reduce dissipation of social surplus in commercialization of an innovation by awarding an exclusive right of development. A strong objection to Kitch's original theory is that granting a 'prospect' patent simply pushes the rent-seeking into the race for the patent itself. But if, as is posited by evolutionary theories of innovation, innovation proceeds myopically so that different firms have different information about and opportunities for innovation, then not all opportunities are exploited immediately and rent-seeking will not result in complete dissipation of surplus. In a world of bounded rationality, Kitch's prospect theory is plausible.
Once we take imperfect information regarding feasible lines of research of into account in the rent-seeking problem, patent looks very different from poorly defined copyright. The rent-seeking problem would be significantly worse in a copyright system which protected works likely to be created independently, because claims of independent creation which are raised after the publication of the first creator's work would have to be taken seriously. There would then be an incentive for copiers who observe a valuable idea to claim to have created it independently in order to be able to extract licence fees from subsequent users of the idea. In effect, a copyright regime would allow rent-seeking with the perfect information of hindsight. In contrast, patent protection eliminates the possibility of such ex post rent-seeking by rejecting claims by subsequent creators out of hand. Put another way, the patent system rejects the defence of independent creation and relies on bounded rationality in innovation to reduce rent-seeking, while the copyright system operates under perfect information regarding the value of the work and relies on the defence of independent creation to prevent rent-seeking.
This assessment of the role of the patent monopoly also helps explain the rule that an invention is obvious if it is obvious to try and there is a reasonable expectation ofsuccess. This rule is puzzling on the surface, particularly in the context in which it is most prominent, namely inventions using recombinant DNA technology to develop new drugs or other useful compounds. It may be obvious to attempt to produce some therapeutically useful human protein, such as human insulin, using recombinant DNA technology, and success may be quite certain given enough time and money. At the same time, it will be much cheaper for a second team replicate the success of the first, once the essential information regarding the DNA sequence is known. The cost of initial development is very high, and the cost of replication is significantly lower, thus raising what appears to be a classic case for protection. In order to encourage research, we need to prevent the subsequent developer of the product from undercutting the party who did the essential research. Otherwise the admittedly and obviously useful product may never be developed at all. But the context in which the invention is obvious to try and probable to succeed is precisely when the threat of dissipation of the value of the intention through a patent race is the greatest. This is not entirely compelling as a justification for the rule, since the patent race can only dissipate the appropriable surplus. The appropriable surplus is necessarily less than the social surplus both because the term of protection is limited and because the inventor cannot appropriate all the value even during the term of protection (barring perfect price discrimination, which is impossible). But even if the patent race problem does not strictly justify the rule in O 'Farrell, it plausibly explains the source of the courts' concern.

Web sites/pages critical of aspects of copyright

The non-copyrightability of conceptual art

In the 1960s and 1970s, one of the active art movements was that of Conceptual Art. One way of characterizing Conceptual Art is as those forms of art where the idea of the art is all important and the expression (if expressed) irrelevant (see the Oxford Dictionary of Art definition of conceptual art). Sol Lewitt put it nicely, especially in light of patents: "The idea becomes a machine that makes the art." One book, Conceptual Art: a critical anthology edited by Alexander Alberro and Blake Stimson, is an excellent anthology of the history of conceptual art. Another book, Six years: the dematerialization of the art object from 1966-1972 edited by Lucy Lippard, is also worth reading.

In 1901, Frank Lloyd Wright foresaw movements such as Conceptual Art, in his speech The Art and Craft of the Machine, in which he state that the first duty of the artist is to study the machine at work.

While interesting as one of many art movements, to the intellectual property world, Conceptual Art poses a problem. That is, a priori the artists seem to be denying the copyrightability of their art works, given that copyright law explicitly bans copyright for ideas. What follows are quotes about conceptual art where the importance of ideas are emphasized in a variety of ways. For such forms of art (and others forms of art where the concept is of most importance, while the final product/expression mostly formulaic engineering), the question arises: "Does copyright law break down?"

From the article, Paragraphs on Conceptual Art, by Sol Lewitt, appearing in the Summer 1967 issue of Artforum:

I will refer to the kind of art in which I am involved as conceptual art. In conceptual art the idea of concept is the most important aspect of the work. When an artist uses a conceptual form of art, it means that all of the planning and decisions are made beforehand and the execution is a perfunctory affair. The idea becomes a machine that makes the art.
What the work of art looks like isn't too important. It has to look like something if it has physical form. No matter what form it may finally have it must being with an idea. It is the process of conception and realization with which the artist is concerned.
To work with a plan that is pre-set is one way of avoiding subjectivity. It also obviates the necessity of designing each work in turn. The plan would design the work. Some plans would require milliosn of variations, and some a limited number, but both are finite. Other plans imply infinity. In each case, however, the artist would select the basic form and rules that would govern the solution of the problem. After that the fewer decisions made in the course of completing the work, the better. This eliminates the arbitrary, the capricious, and the subjective as much as possible. That is the reason for using this method.

When an artist uses a multiple modular method he usually chooses a simple and readibly available form. The form itself is of very limited importance; it becomes the grammar for the total work. In fact it is best that the basic unit be deliberately uninteresting so that it may more easily become an intrinsic part of the entire work. Using complex basic forms only disrupts the unity of the whole.
If the artist carries through his idea and makes it into visible form, then all the steps in the process are of importance. The idea itself, even if not made visual, is as much a work of art as any finished product. All intervening steps - scribbles, sketches, drawings, failed work, models, studies, though, conversation - are of interest. Those that show the thought process of the artist are sometimes more interesting than the final product.

Lewitt's comment on ideas, machines and art is paralleled in a comment by Jacques Derrida: "To write is to produce a mark which will constitute a kind of machine that is in turn productive ... the writer's disappearance will not prevent it functioning.". Machines are industrial, which connects Conceptual Art to Pop Art, as suggested by a comment by Roy Lichtenstein in a 1963 interview by Gene Swenson: "Everybody has called Pop Art 'American' painting, but it's actually industrial painting ... I think the meaning of my work is that it's industrial, it's what all the world will soon become.". And if not a machine, then an instrument:

In reality, each reader reads only what is already within himself. The book is only a sort of optical instrument which the writer offers to the reader to enable the latter to discover what he would not have found but for the aid of the book. Marcel Proust, The Past Recaptured

From the introduction to the catalogue to the exhibition "Konzeption/Conception" by Rolf Wedewer and Konrad Fischer and staged at the Stadischen Museum in Leverkusen, October-November 1969:

Out of this [Earth-Art] emerged Conceptual art that, for the first time, represents an art that only consists of planning sketches whose execution and transformation into the final work of art is considered of secondary importance and, therefore, can be dismissed. Moreover, the sketches and designs of Conceptual art no longer refer to concrete objects waiting to be turned into an art object - as was the case with Land art - their references are instead unspecificed events or processes. Following Georg Jappe's formula, one could say that Conceptual art substitutes the object-like ("verdinglichte") final work by a creative process.
Independent of the individual idea in a concrete conceptual design and notwithstanding the fact that one may judge a concrete conceptual design as meaningful or nonsensical, one thing is sure: a new procedure becomes visible within this form of art that has the potential for entirely new artistic developments, even if they will lead to different artistic practices than the ones represented in present Conceptual art.

Anne Barron, in her paper, Copyright law and the Claims of Art, reference in more detail above, writes:

One of these counter-tendencies found expression in Conceptual Art, which problematised the assumption that art is purely and primordially visual. Joseph Kosuth's word paintings, for example, "asserted a strict identity between verbal concept and artistic form", offering written documentation to the "viewer" instead of purely visual experiences. This was part of a broader tendency towards the dematerialisation of the art object: the production of art that yielded no object; or in which process, context-dependence, chance or randomness were prioritised over form, self-sufficiency, authorial control or intentionality. The genres encompassed by this tendency, in turn, have included Land Art (whose "works" are completed by the forces of nature, the landscape or the built environment); Body Art (where the body and/or its products are used as aterial for art-making); Installation Art (where the art is defined primarily by its spatial location and context rather than by the materials that constitute it); Performance Art; and Video Art (where the use of video, an essentially time-based medium, is apt to suggest a refusal of the instantaneity or simultaneity celebrated by Modernist critics such as Fried).

From the article "The Dematerialization of Art" by Lucy Lippard and John Chandler in the February 1986 Art InternationaL:

During the 1960s, the anti-intellectual, emotional/intuitive processes of art-making characteristic of the last two decades have begun to give way to an ultra-conceptual art that emphasizes the thinking process almost exclusively. As more and more work is designed in the studio but executed elsewhere by professional craftsmen, as the object becomes merely the end product, a number of artists are losing interest in the physical evolution of the work of art. The studio is again becoming a study. Such a trend appears to be provoking a profound dematerialization of art, especially of art as an object, and if it continues to prevail, it may result in the object's becoming wholly obsolete.

Helene Parmelin, in her 1965 book about Pablo Picasso, quotes his thoughts on idea over expression:

"Braque always said that the only thing that counts, in painting, is the intention, and it's true. What counts is what one wants to do, and not what one does. That's what's important. In cubism, in the end what was important is what one wanted to do, the intention one had. And that one cannot paint."

From the article "Intention(s)" by Joseph Kosuth that appeared in the September 1996 Art Bulletin:

When art historians, even the best of them, write about intention there seems to be a presumption that you have two things: the work of art and the artist's intentions. As an artist I find this, perhaps more than any other single thing, the major division now between how artists understand their work and how art historians see them. While the primacy of the object has long been questioned by artists, it remains the basis for much of the art-historical enterprise.
Conceptual art, simply put, had as its basis tenet an understanding that artists work with meaning, now with shapes, colors or materials. Anything can be employed by the artist to set the work into play - including shapes, colors, or materials - but the form of presentation itself has no value independent of its role as a vehicle for the idea of the work. Thus, when you approach the work you are approaching the idea (and therefore the intention) of the artist directly. The "idea", of course, can be a force that is as contigent as it is complex, and when I have said that anything can be used (or as) a work of art, I mean just that: a play within the traditional constraints of morphology, media or objecthood.
The relevance of this to the question of intention is in what it implies: the disappearance, perhaps with finality, of the threshold between what had been the art object (that which is now simply art) and the intentions of its maker. Indeed, there can no longer really be a separation between the work and the intention of the artist; the work of art, in this case, is manifested intention.
or in intellectual property terms, expressed idea.

From the three part article "Art after Philosophy" by Joseph Kosuth that appeared in Oct/Nov/Dec 1969 Studio International:

It is necessary to separate aesthetics from art because aesthetics deals with opinions on perception of the world in general.
The relation of aesthetics to art is not unlike that of aesthetics to architecture, in that architecture has a very specific function and how "good" its design is primarily related to how well it performs its function.
Aesthetic considerations are indeed always extraneous to an object's function or "reason to be". Unless of course, the object's "reason to be" is strictly aesthetic. An example of a purely aesthetic object is a decorative object, for decoration's primary function is "to add something to so as to make more attractive; adorn; ornament", and this relates directly to taste. And this leads us directly to "Formalistic" art and criticism. Formalist art (painting and sculpture) is the vanguard of decoration, and, strictly speaking, one could reasonably assert that its art condition is so minimal that for all functional purposes it is not art at all, but pure exercises in aesthetics.
Given this, formalist painting and sculpture activity can be granted an "art condition", but only by virtue of its presentation in terms of its art idea (e.g., a rectangularly-shaped canvas stretched over wooden supports and stained with such and such colors, using such and such forms, given such and such a visual experience, etc.). Looking at contemporary art in this light, one realizes the minimal creative effort taken on the part of formalist artists specifically, and all painters and sculptors (working as such today) generally.
Formalist criticism is no more than an analysis of the physical attributes of particular objects which happen to exist in a morphological context. But this doesn't add any knowledge (or facts) to our understanding of the nature or function of art. Nor does it comment on whether or not the objects analyzed are even works of art, since formalist critics always bypass the conceptual element in works of art. Exactly why they don't comment on the conceptual elements in works of art is precisely because formalist art becomes art only by virtue of its resemblance to earlier works of art. It's a mindless art. Or, as Lucy Lippard so succintly described Jules Olitski's paintings: "they're visual Muzak".

From the article "Conceptual Art as Art" by Ian Burn in the September 1970 issue of Art and Australia:

During the twentieth century, all innovations in art have been conceptual; to mistake as such the changing of say hard-edge to soft-edge is to have a peculiarly telescoped view of one's "language" and to confuse art's function with a kind of rearrangement of furniture. Since Cubism and Malevich's Black Square, through Reinhardt's Invisible Paintings, there has been an obsessive desire to abstract; that is, artists have wanted to remove their art from "the green world of flesh and bones" and purge it of anything that was recognizable (be it flying angels or abstract imagery). Anything in art that was not strictly art was progressively eliminated. Conceptual Art can be seen withing this tradition; not only does it remove morphological significance as art, but it isolates "the art" from the form of presentation altogether.

From the article "De-Aestheticization" by Harold Rosenberg in the 24 January 1970 The New Yorker:

Aesthetic withdrawal also paves the way for "process" art - in which chemical, biological, physical or seasonal forces affect the original materials and either change their form or destroy them, as in works incorporating grass and bacteria or inviting rust - and random art, whose form and content are decided by chance. Ultimately, the repudiation of the aesthetic suggests the total elimination of the art object and its replacement by an idea for a work or by the rumor that one has been consummated - as in conceptual art. Despite the stress on the actuality of the materials used, the principle common to all classes of de-aestheticized art is that the finished product, if any, is of less significance than the procedures that brought the work into being and of which it is the trace.

From an interview of Hans Haacke in Arts Magazine, May 1971, pages 18-21:

Question: What is your definition of a system that is also a work of art?
Haacke: A system is most generally defined as a grouping of elements subject to a common plan and purpose. These elements or components interact so as to arrive at a joint goal. To separate the elements would be to destroy the system. The term was originally used in the natural sciences for understanding the behavior of physically independent processes. It explained phenomena of directional change, recycling and equilibrium. I believe the term system should be reserved for sculptures in which a transfer of energy, material or information occurs, and which do not depend on perceptual interpretation. I use the word "systems" exclusively for things that are not systems in terms of perception, but are physical, biological, or social entities which, I believe, are more real than perceptual titillation...

From an essay by Joseph Kusuth in The Fox, 1975, pg. 87-96:

Typical of most recent art "movements", conceptual art has had a relatively brief life. ... The scientistic structure upon which I based my older work was intended to provide an arena in which work on art could be art yet leave behind the aura of profound personal moments reified and vying for recognition as "masterpieces". The activity was art, not the residue. But what can society do with activity? Activity must mean labor. And labor must give you a service or a product. Only as a product could what I spent my time doing be meaningful in this society. But what it meant to me, and to anyone really interested in art had nothing at all to do with its existence as a product.
In some respects, conceptual art was a tacit recognition that visual iconography was "used up" for surface structural purposes. What then became the surface structure in theoretical conceptual art was methodological choice in the description of whether what was being described was art - which is in keeping with the understanding that this was not appealing to the traditions of artmaking procedure (painting and sculpture) but to the deepest structure of the "logic" of western civilization: that is, to culture itself.

From Ian Burn's article, "the 'sixties: crisis and aftermath (or the memoirs of an ex-conceptual artist" in Art & Text, Fall 1981, pages 49-65:

Each of the early 1960s styles was marked by a tendency to shift significant decision-making away from the process of production to the conception, planning, design and form of presentation. The physical execution often was not carried out by the artist, who instead could adopt a supervisory role. While the execution frequently entailed quite rigorous control and technical proficiency, the scope of required skills was severely limited ... or else it demanded skills of workers in other-than-art fields, where there was little advantage to be gained by the artist acquiring and competing with those skills.

This mode of production encouraged artists to devalue not just traditional skills but the acquisition of any skills demanding a disciplined period of training. Younger artists were faced with the conclusion that it was unnecessary to acquire any more than the few skills demanded to reproduce the particular style to which they were committing themselves. While persuasive arguments can be made in favor of discarding "anachronistic" practices in the face of "space-age" technologies, what is so often overlooked is that skills are not merely manual dexterity but forms of knowledge. The acquisition of particular skills implies an access to a body of accumulated knowledge. Thus deskilling means a rupture within an historical body of knowledge - in other words, a dehistoricization of the practice of art.
The devaluing of traditional skills threw into question the status of the work of art as a privileged object, as a special thing-in-itself. With few or no artistically valued manual skills involved in the production of the work, it was hard to sustain the idea that the object itself was the exclusive embodiment of a special creative process.

Moreover, the official styles of the early 1960s deflected importance away from the physical work of art itself, giving more weight to the conception of the work, the process by which it was produced, its context of display or its sheer existence ("presence"). The power of the work became the power it could reflect through its immediate institutionalized context (galleries, museums, glossy magazines), or through contexts it invoked associations with, for example, the "international style" which had become identified with the new corporate architecture, design and public relations image; the advertising and symbolism of multinational corporatism; the mass-reproduced imagery of the media, etc.

Composer William Rhoads, in an 1996-1997 essay The Death of Modernism in Contemporary Music on conception in music writes:

While it is agreed that the emphasis on means rather than the ends as a Modern characteristic is more a product of Late or Ultra-Modernist activity (e.g. Cage, Babbitt, Boulez and Xenakis) than that of the age as a whole, it can still be recognized as a distinguishing factor of Modern aesthetics for two reasons.
Cage, in the footsteps of Duchamp and his followers, explored the outer limits of artistic consciousness by offering listeners an ideological framework which would allow them to accept any sound as a possible source for aesthetic application. He offered listeners an opportunity to experience this musico-philosophical concept in his works by employing an elaborate procedural scheme through which all (or many) of the musical parameters were governed by chance operations.
This Modernist fixation on procedural and ideological features in music is another reason for the characteristic divisionism between high and low cultures explained earlier, and the proponents of this approach have found a considerable degree of refuge and stability from popular culture in our academic system.
In an effort to meet and challenge the intellectual interests of their adherents, composers continually up the ante with regard to the promise of structural complexity in their works. The increased sophistication of means in order to achieve this goal leads to the proportional increase in emphasis on parametrical features in a [music] composition, ...

Prof. Robert Ekelund, in a review (J. Cultural Economics, pg. 325, 2002 ) of David Galenson's book on the age of artists when they are the most creative, Painting outside the lines: Patterns of Creativity in Modern Art (2001), writes:

.... He argues that there are two types of [artistic] innovator, the "experimental" and the "conceptual", claiming that Paul Cezanne is the archetype for the former and Pablo Picasso the same for the later. .... According to Galenson, the experimental innovator is an "empiricist" for whom "no work is finished". These perfectionists are constantly trying to "get it better" throughout their careers through trial and error. The conceptual artist on the other hand produces works that "embody innovations derived by deduction from general principles". They make numerous and detailed preparatory sketches and planning for their works, but with virtually all decisions made beforehand, the actual work is mundane or perfunctory. It is the "idea" that counts in conceptual innovation and the "process" or the presentation of "visual perceptions or sensations" related to nature that motivates the former.

The "experimentalists" are acting too much like engineers, and the "conceptualists" acting too much like scientists, for both groups' products of processes and ideas to not be protected by copyright, but the engineers' and scientists' patents.

One of the few recognitions of the legal clashes between conceptual art and copyright appears in the paper "Copyright problems in post-modern art" by Lori Petruzzelli (Depaul J. Art & Ent. Law, Winter 1994, 115):

Even with this broad framework and flexible approach, the Copyright Act fails to extend protection to many movements within post-modern art. Post-modernism rebels against the traditional norms of originality, ownership, and expression that define copyright protection. The post-modern artist challenges notions of originality by lifting images from pre-existing works to present novel ideas about society, politics, and consumerism. Ownership is questioned by appropriation artists who take the work of another and claim it as their own. Artistic expression, once the essence of art, is now subservient to the artistic idea. "[Post-modernism's] . . . ambitions are not the ambitions of art, but those of politics or psychology or pornography or something else.".
Post-modernism not only runs counter to the incentive structure of the Copyright Act, but to its minimum requirements that a work be original in expression. Within post-modern art is the conceptual art movement which challenges notions of creativity by embracing the idea as art, rather than the execution. This entire movement challenges the underpinnings of copyright law: the notions of originality and expression versus idea. The notion that art does not need to have any form at all so long as the artist has a mental conception is a total rejection of copyright's notion that a line can be drawn between idea and expression.
Fulfilling the requirement of originality for copyright protection is difficult for the conceptual artist because creativity for them lies in the idea, not in the expression. In conceptual art, language and ideas are the true essence of art, not the visual or sensory experience. Artist Douglas Huebler summarized the spirit of the movement when he stated that all art activity is a process of conceptual documentation, and it is ideas that remain once the creative process has ended.
Dada movement, art had more to do with the artist's intentions than with any creative act or aesthetic expression. To Duchamp, art was idea. As such, the materials of the conceptual artist are as infinite as the amount of ideas and interpretations.

The work of German artist Hans Haacke is a prime example of art as idea, not expression. Haacke's work, entitled Manet Project, consists of panels that list the names of all the people who bought and sold Manet's Bunch of Asparagus from 1880 until the Wallraf-Richartz Museum in Cologne acquired that painting. His work's importance rests not in the visual effect or aesthetic qualities of the letters on the panels, but in questioning the association of business transactions with the art world.

Art as idea is also a powerful tool of political conceptual art. Jenny Holzer is a conceptual artist known for her "Truisms" or aphorisms of powerful words. In 1982, Holzer flashed messages on the electronic board in Times Square that read, "Property Created Crime" and "Torture is Barbaric". Her work has also been exhibited in the Guggenheim in the form of provocative messages communicated in light. Like Haacke, the importance of Holzer's work lies in the message she is communicating, and not in the visual effects of colored light.
The nature of abstract art simply does not lend itself to a wealth of creative expression. Some critics believe that we may soon reach a point where very few variations on abstraction will have remained unclaimed. Art critic James Gardner writes that it is now a miracle when a contemporary artist makes a truly original abstraction. Likewise, Thomas Lawson writes that the "deliberate sparseness" of minimalism and abstraction have become "worn through overuse".
Because copyright protection is currently only extended to works of original expression, copyright protection would have to be extended to original ideas, as well as expression, to accommodate conceptual art. Under such a system everything could be potentially copyrightable art, as long as the conception were original. This could lead to some ridiculous results. Consider the work of performance artist Chris Burden. In Burden's work Garcon! the artist did nothing more than serve coffee to hundreds of gallery patrons. The cream pitcher he used was later encased in glass and sold for $24,000 as a work of art. If copyright protection were extended to original ideas, others would be forestalled from serving coffee if they exhibited a motivation similar to Burden's. Producers of cream pitchers may be threatened with an infringement action if a pitcher of theirs was used for a similar purpose. There would also be the administrative problem of registering ideas and proving that what someone claims to be their idea is a bona fide conception and not a ploy to escape infringement.
Roman Opalka's work is an interesting example of Minimalist art which is original in idea but not in expression. His life's work is painting sequences of numbers on black canvas with white paint. He reduces the tone of the black background by one percent and estimates by the time he is seventy, his works will be white on white. Opalka's idea is original, but his end product of an all white canvas will be the same in expression as Malevich's White on White.

Even if Malevich never painted White on White, Opalka's work would not receive copyright protection because an all white canvas embodies the merger doctrine. Where a work's underlying expression can only be expressed in one way, a court will withhold copyright protection even if there is some original expression. Using the example of Malevich's White on White, there is no other way to express the idea of a white square than to paint a white square. To grant copyright protection to the white square would confer a monopoly of the white square on one artist. This result would be disastrous to creativity in general. Any work containing a white square could potentially be infringing, from a folk art quilt with white patches to a representational painting depicting a white window.

The general rule is that if there is more than one way to express something, a court will grant copyright protection even if the expression is closely circumscribed by the idea. In the case of the white square, although one can vary the medium, there is essentially no other way to express a white square. Even if the monopoly was confined to the original medium of paint on canvas, the creative avenues of one entire medium would be stifled. This may encourage artists to abandon a medium once the basic creative ingredients of shapes, colors, and dimensions are claimed by other artists. This would undermine the incentive structure of the Copyright Act, and would stifle the creation of new works of art.
Even if a post-modern artist borrows from the public domain, transforms a work which she has the copyright to, or pays a licensing fee, if the derivative artist wishes to receive copyright protection, the work must still meet copyright's originality requirement. Originality in a derivative work requires that the author contribute "something more than a 'merely trivial' variation, something recognizably 'his own'. No matter how poor artistically the 'author's' addition, it is enough if it be his own." Thus, two requirements for originality must be met if the derivative work is to receive copyright protection: the derivative work must borrow the original expression from an underlying work and the new work must be a transformation of the underlying work, not simply a copy.
Nevertheless, some derivative works by post-modern artists do not fulfill the distinguishable variation requirement. If someone were to copy the work of these artists, the post-modern artist would have no recourse under the Copyright Act since the derivative work fails to fulfill the low threshold of originality that is required for copyright protection. For example, the distinguishable variation standard for derivative works operates to exclude the whole movement of Super Realism from copyright protection. Super Realism appropriates images from photographs and replicates them exactly in paint or a similar medium. The whole point of Super Realism is that there is no deviation from the original, underlying work. If the work of this movement is not protected, one must ask if there will be any incentives to create this type of art. Is this type of art not protected because it is not the type of expression that Congress believes will benefit the public? The answer is that this type of art does not produce anything new to our culture by way of expression. Some may argue that the originality standard for derivative works must be reformulated so as to not arbitrarily discriminate against post-modern art. Nevertheless, the Copyright Act does not arbitrarily discriminate against post-modern derivative works. The low threshold requirement of originality excludes some movements within post-modernism, but not all movements. Some movements within post-modernism do produce works containing some low level of original expression. These works do receive copyright protection because they contain original expression. Congress believes that the dissemination of such works containing some level of original expression will be beneficial to the public in that they add to our cultural vocabulary.
One must examine the non-traditional way in which post-modernism defines art in order to understand how unworkable the Copyright Act would be if it were overhauled to accommodate post-modern art. Some may argue that the copyright requirement of originality suppresses the avant-garde by denying protection to those works which push the envelope of what is considered art. Yet, the whole point of post-modernism is to question the meaning of art. Post-modernists do not need the economic incentives of the Copyright Act to inspire works that question the traditional definitions of art. All they need as inspiration is a traditional definition to defy. The Copyright Act provides such a traditional definition in that it extends protection to works which are traditionally regarded as art. If a work is original in its execution and is in a fixed tangible medium, it will receive copyright protection. If works from movements such as Super Realism fell under the protection of the Copyright Act, it would be because those works had the requisite amount of creativity or originality. If copyright protection were extended to such a work, it would mean that the work fell within the traditional definitions of art. Thus, if a post-modern work receives copyright protection, the artist has failed in his attempt to redefine and challenge the traditional definitions of art. His work has failed to fulfill the mission of post-modernism: to redefine art. Works that push the envelope of originality must fall outside the scope of copyright protection because the Copyright Act provides the standard for originality against which the post-modern artist rebels.

Indeed, a major goal of post-modern art is to obscure "the boundaries and logic of inherited artistic ideas and materials, including the inheritance of Modernism". Post-modern art challenges the traditional definitions of art by embracing new media, escaping the confines of the canvas and the gallery, which were still trappings of the Modernism of Picasso and Miro. To this end, postmodern art departs from painting as the pre-eminent vehicle of artistic expression. Today, art can be anything. The artist, Christo, for example, wrapped two and a half miles of Australian coastline in fabric. Christo considers the act of uniting zoning boards, landowners, the press, the ocean, and land as much a part of his art as was the coastline, enveloped in yards of fabric. In this way, Christo tried to escape the confines of traditional art, where the gallery is the center of gravity.
As post-modern artists redefine art in ways that run counter to copyright's definition of art, so do they also redefine the way in which art should be evaluated. The post-modern view of artistic judgment runs counter to the underpinnings of the Copyright Act. Post-modernists think art should be subjectively evaluated. Yet, the Copyright Act is based on objective evaluation so as to minimize bias against new art forms that may result from the subjective approach. In this way, the Copyright Act actually protects modern art forms from intentional bias.
We now know that post-modern art redefines and challenges traditional definitions of art. It is important to understand why post-modern art does this. Such an understanding will help to explain why it would be unwise for the Copyright Act to accommodate post-modernism. "Post-modernism . . . critiques the very attributes that copyright law uses to define art: namely, artistic creativity and originality.". There is no predominant trend in post-modernism, rather there are different movements which use different elements of the modernist tradition. The fragmentation of post-modern art is a reflection of the "glut of images and confrontation of images taken straight from advertising media, television, film, and 'high' art . . . that are direct reflections of the contemporary experience". Via a plethora of creative avenues, the post-modern artist questions the way society sees certain images by challenging the meaning society assigns to such images. An example of assigning new meaning to an old image is Duchamp's L.H.O.O.Q. By defacing the Mona Lisa, Duchamp gave new meaning to this seminal piece of renaissance artistry. He challenged the viewer to consider the work in a new, debased context, that mocked art history and the icons of classical art.
Considering the artist's intent in cases of industrial design could have potential implications for the Conceptual artist. If Marcel Duchamp designed his bottle rack instead of using a pre-existing item, which he termed "ready-mades", he could potentially get copyright protection under this analysis by stating that his intent was to create a sculpture, even though the bottle rack's function and aesthetics were fused. This type of analysis would leave the door open to designers feigning artistic intent and would potentially flood the copyright office with work that they specifically sought to avoid. Thus, extending copyright protection to conceptual art would lead to arbitrary judgments based on whether an artist's intent is genuine. It would lead to huge administrative problems in determining which works had an underlying bona fide artistic purpose. Judges may then have to interject their own subjective standards in determining what ideas are truly original and what are not. Copyrightability could turn on the personal experiences of the fact finder. One judge could consider an idea original while another could consider commonplace. Because ideas are amorphous and intangible, it would be a logistical problem to register such mental creations. These types of administrative problems and arbitrary results would do nothing to further the dissemination of works of art to the public. If anything they would discourage it.
It is the nature of post-modern art to stretch the limits on what is considered art. If the Copyright Act were to accommodate post-modernism, it would have to be continually re-written as artists redefine and rewrite the rules of creativity, originality, and authorship. We are at a time where everything can be art, even Duchamp's bottle rack. If art has no limits, should copyright have no limits? Clearly, this is an unworkable proposition. The original incentives of the Copyright Act to encourage unique and original works would be seriously undermined. .... Post-modern art, by definition, undermines original expression. Any laws that would accommodate this type of art would, therefore, undermine the essence ofthe Copyright Act.

conceptual art versus Conceptual art

While there exists a class of art known as "Conceptual" dating to the mid- to late-twentieth century, there is much art outside this class that is as conceptual as Conceptual art. For example, as far back as Leonardo Da Vinci there were artists emphasizing ideas in some of their works:

Leonardo was so famous for [collectors], in fact, that when he returned to Florence in 1501 after an absence of 17 years at the Sforza court in Milan, all he had to do was exhibit the cartoon (that is, the full-size preparatory drawing, now lost) for his planned painting, The Virgin and Child with Saint Anne and a Lamb in order to pull crowds into his home. (Newseek, 24 Feb 2003, pg. 50)

The converging economics of copyrighted and patented works

Click here for information on the Internet concerning the economics of patents and copyrights , including legal articles    and financial studies. Click here for a Web site with news stories on the Economics of Content.

The vast majority of artists and entertainers with their copyrights, and the vast majority of inventors with their patents, never make much money. Only the few ever make large amounts of money, no matter how long they have to exploit their products. Evidence of this equality can be seen in a table of monetary awards from lawsuits and licenses involving patented and copyrighted works, a table in which the patent and copyright cases are equally interspersed. The drug industry and the entertainment industry have converging economics, where a small number of products earn tremendous profits that pay for the development, protection and marketing of new products. This calls to mind the observation of Igor Stravinsky in his 1936 autobiography (probably inspired by Karl Marx):

Most people like music because it gives them certain emotions, such as joy, grief, sadness, an image of nature, a subject for daydreams, or -- still better -- oblivion from 'every-day life'. They want a drug -- 'dope'.

Originally under American law, patents and copyrights both lasted fourteen years. While the term of patent protection has gradually been increased to twenty years (from when the patent is filed), the term of copyright protection has increased to life of the author plus many years, in many cases over 100 years? But as artists and inventors are increasingly indistinguishable in terms of their required training, time needed for research and development, tools used, marketing requirements, potential profits, and other business factors, the question is why are patent and copyright terms different? Why shouldn't they be the same? Indeed, the U.S. Supreme Court eloquently asked this question in an 1834 decision, Wheaton v. Peters:

In what respect does the right of an author differ from that of an individual who has invented a most useful and valuable machine? In the production of this, his mind has been as intensely engaged, as long, and, perhaps, as usefully to the public, as any distinguished author in the composition of his book. The result of their labors may be equally beneficial to society and in their respective spheres they may be alike distinguished for mental vigor.

It would seem, therefore, that the existence of a principle [giving a disproportionately longer term to copyright than to patent] may well be doubted, which operates so unequally.

169 years later, such doubt is even greater, especially in light of developments in science, technology, and business practices which render the author and inventor increasingly indistinguishable. More than likely, the doubt should be complete - patent and copyright terms must be equal. Indeed, the majority decision of the Supreme Court in Eldred v. Ashcroft, (239 F.3d 372, 2003) in dismissing the dissent of Justice Breyer (in which he argues that 20 years of extra protection leads to little extra profit of the copyright holder), argue that with his calculations you could role back copyright term to that of 1836 with little economic impact on the copyright holder:

If JUSTICE BREYER's calculations were a basis for holding the CTEA unconstitutional, then the 1976 Act would surely fall as well, for - under the same assumptions he indulges - the term set by that Act secures 99.4% of the value of a perpetual term. See Brief for George A. Akerloff et al. as Amici Curiae 6, n. 6 (describing the relevant formula). Indeed, on that analysis even the "limited" character of the 1909 (97.7%) and 1831 (94.1%) Acts might be suspect. JUSTICE BREYER several times places the Founding Fathers on his side. See, e.g., post, at 5, 20. It is doubtful, however, that those architects of our Nation, in framing the "limited Times" prescription, thought in terms of the calculator rather than the calendar.
Since we don't know what the Founding Fathers would think about the implications of the last 169 years of science and economics on their assumptions about protecting artists and inventors, it is unjust to so quickly dismiss "calculations" such as that of Justice Breyer, or the 1996 comments of Justice Laddie of the Royal Courts of Justice in London:
Furthermore, it is possible to argue that these long copyright terms are not necessary to promote the commercial exploitation of the works themselves. Most works protected by copyright are exploited very rapidly, if at all. This is so whether we are considering films and records or literary works. Even books such as those that win the Booker prize are only commercially successful for a short time and then, to all intents and purposes, pass away. Yet the dead hand of copyright lingers on, in most cases serving no useful purpose.
In 1831, copyright term was 28 years (plus one 14 year renewal), much closer to today's patent term of 20 years. Is it unreasonable to ask users of copyright to give up 5.9% (100% - 94.1%) of their return to more harmonize copyright's term of protection (down to 28 years) with that of the patent system? The European Union has just created a Design Patent with 25 years of protection. Why not harmonize the term of American utility patent, design patent and copyright to 25 years as well?

For example, in Europe, the United Kingdom and Canada, sound recordings are only protected for 50 years. See Sound Recordings and Copyright. In Japan, the copyrightable aspects of visual works such as film and video games are only protected for 50 years (with efforts in 2003 to extend the protectin to 70 years).

Legal scholar Edward Walterscheid has written an excellent article on why Wheaton's and Breyer's doubt should be complete, titled "The Remarkable - and Irrational - Disparity between the Patent Term and Copyright Term" (JPTOS , April 2001). His conclusion states it clearly:

In 1790 the base term for patents and copyrights was the same. Today, the base term of copyrights is almost four times longer than that of patents and may easily be five or more times longer. Neither Congress, nor courts, nor commentators have provided any showing that the creative efforts of authors are so inherently more difficult or different than those of inventors that such a remarkable disparity is required by the very nature of the efforts. Indeed, with the possible exception of the harmonization rationale, every rationale set for the continuing lengthening of the copyright term is also applicable to the patent term. If these rationales are valid, they should also be applied to the patent term. If they are not, then there is no good justification for the present copyright term(s). Simply put, there is nothing rational about the present huge disparity between the patent and copyright term.

In 1978, the term of copyright was extended from 56 years (already much longer than the term for patents) to life of the author plus 50 years. Walterscheid cites seven rationales put forth in an article by Nimmer and Nimmer, rationales invoked to justify the great extension in patent term:

  1. The 56-year term under the 1909 Act was not long enough to assure an author and his dependents a fair economic return, given the substantial increase in life expectancy.

  2. The growth in communication media has substantially lengthened the commercial life of a great many works, particularly serious works which may not initially be recognized by the public.

  3. The public does not benefit from a shorter term, but rather the user group derives a windfall, as the prices the public pays for a work often remain the same after the work enters the public domain.

  4. A system based upon the life of the author avoids confusion and uncertainty, because the date of death is clearer and more definite than the date of production, and it means that all of a given author's works will enter the public domain at the same time instead of seriatim as under a term based on publication.

  5. The renewal system is avoided with its highly technical requirements which often cause inadvertent loss of copyright.

  6. A statutory term of life-plus-50 years is no more than a fair recompense for those who under the 1909 Act owned common law copyrights which continued in perpetuity as long as a work remained unpublished.

  7. A majority of the world's countries have a term of life plus fifty. To adopt the same term expedites international commerce in literary properties, and opens the way for membership in the Berne Convention.

Walterscheid then addresses these seven rationales from two points of view. His first point of view is to ask how well do the rationales satisfy two questions asked by Congress in 1909, constitutional standards to be considered when extending the lengths of copyright terms:

First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public.

However, as he points out in his article, the seven rationales don't address either question, quoting: "In failing to address these constitutional standards, which it had acknowledged to be applicable and with with the Supreme Court fully concurred, Congress chose instead to substitute rationales that were instead almost entirely for the benefit of the copyright holder than that of the public."

His second point of view is to ask if these seven rationales can be used for justifying extending patent terms to life of the inventor plus fifty years. His answer is "Yes, the rationales do support extending patent term to as long as copyright.", as follows:

Rationale 1: "If the '56-year term under the 1909 Act was not long enough to assure an author and his dependents a fair economic return, given the substantial increase in life expectancy' as Congress argued, why, given the same increase in life expectancy for inventors, was a patent term of 17 years deemed sufficient to give a fair economic return to inventors? If economic reward to authors was secondary to the public interest as Congress acknowledged in 1909, how did Congress justify now making economic reward a primary concern and ignore the public detriment produced by further lengthening the copyright term?"
Indeed, our table of patent infringement monetary awards and patent license fees is part of the evidence that expected economic returns of authors and inventors is increasingly similar - that is, a small number of people making a large amount of money, and a large number of people making little, if any money, from their products. For both authors and inventors, increasingly the ability to profit decreases over time at similar rates, that is, after 20 or 30 years, if an author or inventor hasn't profited from a new product, it is unlikely they ever will profit.

Those artists and entertainers who do earn substantial amounts of money tend to be few, as this table of data of top 100 artists and entertainers by income for 2002-2003 illustrates, as few as the number of scientists and engineers who earn substantial amounts of money. Similarly, much like drug companies, a small number of entertainment companies make all the money, as seen in this table of data of movie companies' 2002 income, while the others hope to be interesting enough to be purchased by one of the big companies.

Professor David Galenson of the Economics department at the University of Chicago has written a variety of papers on the economic life cycle of artists. While not directly related to the arguments on this Web page, his papers are great reading. Another economics paper about art auctions is "Price estimates and the future performance of artworks".

Rationale 2: "Likewise, if the 'commercial life of a great many works' had been lengthened, particularly serious works which may not initially be recognized by the public' was a rationale for lengthening the copyright term, there was nothing to suggest the situation was any different with respect to patents. A similar argument could be made that many patented inventions are not commercially recognized until many years after they are patented and accordingly the patent term should be lengthened to life of the patentee plus 50 years."

To encourage inventors with their patents to be commercially recognized, to get the public to recognize the benefits of their new creation, the patent system imposes a maintenance fee. Periodically (every four years in the United States, every year in Europe) a patent owner has to pay a fee to keep her or his patent in force. Many patents go abandoned, and become part of the public domain, because the patent owner realizes that in the long run, the patent will earn less money than the cost of the maintenance fees. This is in the best interests of everyone. Yet the copyright system has no maintenance fee, allowing the copyright holder to be lazy in trying to commercial exploit the copyright creation, after paying next to nothing to register the copyright. This is not in the best interests of anyone - the copyright system should yet again borrow from the patent system and impose a maintenance fee.

Additionally, there are many inventions for which their economic benefits most likely can not be realized for many decades, long after any patents to that invention have expired. Yet some inventors still seek patent protection. But how is their possible future any different from that of the copyright holder? So why shouldn't the patent holder have protection for her or his lifetime, and more? For example, one class of such long-term exploitable inventions is satellite power, satellites that collect solar power and beam the energy back to Earth (for example, 1974 U.S. patent 3,989,994 - "Space oriented microwave power transmission system". The economics of Earth-to-space transport are still prohibitive for space-based power systems. Why shouldn't such inventors get longer protection?

Rationale 3: "that 'the public does not benefit from a shorter term ... as the prices the public pays for a work often remain the same ... when it enters the public domain', aside from being totally conclusory and contrary to normal economic experience, suggests that the patent term should be extended for much the same reason in that there is no absolute assurance that the price of a patented product will not remain the same after the patent expires. An argument that a monopoly should be extended simply because there is no guarantee of a price reduction when it expires is not only economically but logically fallacious. It can be used as a rationale to extend almost any monopoly indefinitely."

Rationale 4: "that 'a system based upon the life of the author avoids confusion and uncertainty' is false on its face in that the date when any individual will die is almost by definition uncertain. Any system of property right based on the life span of an author creates basic uncertainty as to the term of the property right. Why should a particular copyright last 50 years longer than another copyright when the two works are created in the same year simply because one author happens to live fifty years longer than the other? There is no public interest served by such a disparate term determination. But if life of an author determines the term of a copyright, why should it not also determine the term of a patent as well? What makes the life of an author more significant than that of an inventor, and why? Why should the various patents of a particular inventor go into the public domain seriatim, but not the various copyrighted works of an author? How is the public interest served by making the term of copyright dependent on the life of the author, but not applying the same principle to the patent term?"

Rationale 5: "that doing away with the renewal system 'with its highly technical requirements' is desirable to avoid frequent 'inadvertent loss of copyright' is also no an appropriate basis for extending the term of copyright to a life in being plus 50 years. Rather, at best it is an argument for a flat copyright term of 56 years. Moreover, if there was a signficant loss of copyright through failure to comply with highly technical renewal payments, the appropriate answer would have been to simplify the renewal requirements rather than extending the basic term of copyright. Since the requirements for obtaining term extension of patents either statutorily or through private legislation are also highly technical, a similar argument applied to the patent term would suggest that the patent term should be extended to a life in being plus say 15 or 20 years to maintain the comparable distinction between the patent term and the copyright term. Even suggesting such an approach points to its absurdity."

There are an increasing number of software products to help companies, law firms and individuals mostly automate the process of tracking and paying renewal maintenance fees for issued patents, as well as a growing number of companies who offer this as a service. Both the software products and offered services can be easily adapted to handle a copyright maintenance fee renewal regime. It is increasingly pure nonsense to imply there is some unsolvable difficulty in doing so for copyrights.

Rationale 6: "that a copyright term of 'life plus 50' years is necessary as a 'fair recompense' to those who lost common-law copyright under the 1976 Act, has no analogy to patent term because there was never a common-law patent right. Nonetheless, it makes little practical or logical sense. First of all, it is a rationale which applies only to those authors who fail to publish their works in a reasonably timely fashion. Second, under the constitutional scheme, there was little or no justification for common-law copyright because more often than not it was detrimental to the constitutional purpose of promoting the progress os science, i.e., knowledge and learning. It served merely as a convenient mechanism to defer publication and hence the running of a statutory copyright term. It was analogous to giving an inventor an absolute right to his invention in perpetuity as long as he did not publish it. Just as critically, an argument that removal of a common-law copyright justifies an increase in the term of statutory copyright is equivalent to saying that narrowing of the scope of an author's copyright protection obligates an extension of the copyright term. As I have earlier indicated, that has never been the law."

Additionally, the 'fair recompense' argument assumes that lengthier protection will lead to more recompense. But at least one content industry admits that lengthier protection doesn't lead to that much more recompense. Fritz Attaway, Senior Vice President, Government Relations and Washington General Counsel of the Motion Picture Association of America, testified before the House of Representatives Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, back when the extension was considered in 1997 that: "First and foremost, term extension will not provide a huge windfall to anyone -- certainly not for the motion picture industry. We do not project a significant revenue increase for movies during the proposed extended term until the year 2020. For us in the movie industry, the importance of US leadership in copyright protection within the community of nations is far more important than short term revenue impact."

Rationale 7: "that a copyright term of life plus 50 years is necessary because a majority of other countries have such a tern so that its U.S. adoption will expedite international commerce in literary properties and open the way of membership in the Berne Convention. ... Never mind that it has not resulted in true harmonization and is unlikely to do so in the future, no matter how much more the copyright term is extended. Moreover, setting the copyright term on the basis of harmonization and its supposed benefit on U.S. international trade practice does not authorize Congress to define a copyright term that exceeds limitations inherenet in the language of the intellectual property clause."

Professor Dennis Karjala has prepared a nice table showing that even after all of the changes to US copyright law in the name of harmonization, American and European copyright terms are still not harmonized .

The final sentence of Walterschied's arguments sums it up best: Simply put, there is nothing rational about the present huge disparity between the patent term and the copyright term.

The nonsense of software copyright

These problems affecting copyright in general have troubled the more narrower domain of software copyright for over 30 years, with courts and lawyers struggling with little success to separate idea and expression when it comes to software. A critical review of these struggles and failed attempts to resolve them is available for reading, titled "Deconstructing software copyright, 30 years of bad logic" , from the incompetence of CONTU (and its bad progeny such as Apple Computer v. Franklin), the heavily criticized and now ignored Whelan v. Jaslow, the to-be-overturned Lotus v. Paperback, to the patent-system-plagarizing Computer Associates v. Altai. A related paper offers a semantic analysis on why business methods are "technical" and therefore patentable, in response to patent offices and courts around the world using the word "technical" while admitting they have no definition of the word.

These struggles with software copyright have led many to seek patent protection for their software, with the Patent Office awarding tens of thousands of software patents each year. Artists and entertainers might want to consider similarly making more use of patents to avoid the increasing logical problems with copyright. Click here for more information on how businesses are relying mostly on patents to protect software .

Inadequacies of books on art and entertainment law and copyright

What follows is a list of much relied-upon books and law review articles dealing with copyright and entertainment law that suffer from not mentioning much these problems with copyright and/or not mentioning much the growing use of patents by artists and entertainers. Where patents are mentioned, the comments are often inaccurate (for example, many books incorrectly state that the patent system has a much higher requirement for something to be unobvious as opposed to the copyright system's much lower requirement for something to be original). Such comments are naive in their understanding of current patent practices, as are the many comments on the relatively higher costs of patent and trademarks.

Artists and entertainers should consider consulting with a patent lawyer to learn how they will be affected by the types of art and entertainment patents disclosed in these Web pages, at least until such time as books such as those below start including more information about patents. One hopes these lawyer authors provide better advice to their clients than what is just in these books.

ENTERTAINMENT, PUBLISHING AND THE ARTS HANDBOOK edited by Viera & Thorne (1983-2001[annual]) Annual multi-article book, with multiple articles on copyright and trademark. No discussion of patents, nor discussion of weaknesses of copyright.
LINDEY ON ENTERTAINMENT, PUBLISHING AND THE ARTS (2002) Multi-volume handbook, with large chapters on copyright and trademark. No discussion of patents, nor discussion of weaknesses of copyright.
ART LAW HANDBOOK edited by Roy Kaufman (2000) A 1100+page book that well covers the use of copyrights and trademarks for protecting the products of artists. However, other than 23 pages dealing with design patents (with a few examples of design patents), there is no mention of the many uses of patents for protecting art. No discussion of weaknesses of copyright.
THE BUSINESS OF ART by Lee Caplin (1998) Popular 350 page book, with 4 pages on patents, one paragraph of which vaguely mentions the use of both design and utility patents. Has no comparison of actual costs of patent and copyright filings.
LEGAL GUIDE FOR THE VISUAL ARTIST by Tad Crawford (2001) Has five chapters on copyright, with no discussion of weaknesses of copyright. Has one paragraph stating that some art is protectable with design patents, with no mention of so using utility patents.
COUNSELING CLIENTS IN THE ENTERTAINMENT INDUSTRY: Practising Law Institute annual (2001) Has one chapter on intellectual property considerations, with no discussion of patents.
ENTERTAINMENT LAW AND BUSINESS by David Guinn and Harold Orenstein (2001) Has many chapters on copyright, and one on trademarks, with no discussion of patents nor weaknesses of copyright.
ENTERTAINMENT LAW by Robert Fremlin (2001) Has chapters on copyright and trademarks, with no discussion of patents nor weaknesses of copyright.
VISUAL ARTS & THE LAW - CLE International (2002) Proceedings of the annual conference, with usual materials on copyright, with no discussion of patents nor weaknesses of copyright.
ART, ARTIFACT AND ARCHITECTURE LAW by Jessica Darraby (2001) Has lengthy chapters on copyright and trademarks, with no discussion of patents nor weaknesses of copyright.
BUSINESS OF BEING AN ARTIST by Daniel Grant (2000) Has one chapter on copyright and trademarks, with no discussion of patents nor weaknesses of copyright.
ART LAW IN A NUTSHELL by Leonard Duboff, Christy King (2000) Has one chapter on copyright and trademarks, with no discussion of patents nor weaknesses of copyright.
ARTFUL OWNERSHIP: ART LAW, VALUATION AND COMMERCE by Aaron Milrad (2000) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
ART MARKETING 101 - HANDBOOK FOR THE FINE ARTIST by Constance Smith (2002) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
LAW, ETHICS AND THE VISUAL ARTS by John Henry Merryman, Albert Elsen (2000) Has a lengthy chapter on copyright, with no discussion of patents nor weaknesses of copyright.
THE RIGHTS OF AUTHORS, ARTISTS, AND OTHER CREATIVE PEOPLE by Kenneth Norwick, Jerry Simon Chasen (1992) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
HOW TO PROTECT YOUR CREATIVE WORK by David Weinstein (1996) All IP discusions involve copyright, none about patents nor weaknesses of copyright.
THE ART LAW PRIMER by Linda Pinkerton, John Guardalabene (1988) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
ART LAW: RIGHTS AND LIABILITIES FOR CREATORS AND COLLECTORS by Feldman, Weil, Biederman (1986) Has one chapter with 200 pages on copyright, with only four pages mentioning patents.
MANAGEMENT AND THE ARTS by William Byrnes (1999) Has no mention of either copyrights or patents.
ART LAW IN CHINA by Zhou Lin (1998) Nice review article, though no discussion of patents.
CLEARANCE AND COPYRIGHT: EVERYTHING THE INDEPENDENT FILMMAKER NEEDS TO KNOW by Michael Donaldson (2003) Has much discussion of copyrights, none on the growing need to check for patent conflicts.
ENTERTAINMENT MEDIA AND THE LAW: TEXT CASES by Paul Weiler (2002) Has two chapters on copyright, with no discussion of patents nor weaknesses of copyright.
LAW AND BUSINESS OF THE ENTERTAINMENT INDUSTRIES by Biederman, Silfen, Berry, Pierson, Glasser (2001) Lots of discussion of copyright, with no discussion of patents nor weaknesses of copyright.
HOLLYWOOD & DEALMAKING by Dina Appleton, Daniel Yankelevits (2000) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
THE COMPLETE FILM PRODUCTION HANDBOOK by Eve Light Honthaner (2001) Has one chapter on copyrights and clearances, with no discussion of patents nor weaknesses of copyright.
THE INDEPENDENT FILM PRODUCER'S SURVIVAL GUIDE by Harris Tulchin (2001) Discusses copyright in various chapters, no discussion of patents.
LITWAK'S MULTIMEDIA PRODUCER'S HANDBOOK by Mark Litwak (1998) Has one chapter on copyrights, with no discussion of art/entertainment patents nor weaknesses of copyright.
COMMUNICATIONS LAW: MEDIA, ENTERTAINMENT AND REGULATION edited by B. Morant (1997) Has one chapter on copyrights, with no discussion of art/entertainment patents nor weaknesses of copyright.
MEDIA LAW FOR PRODUCER by Philip Miller (1998) Has one chapter on copyrights, a misleading discussion of patents.
DEALMAKING IN THE FILM & TELEVISION INDUSTRY by Mark Litwak (1994) Has one chapter on copyrights, with no discussion of patents nor weaknesses of copyright.
PRODUCING THEATER: A COMPREHENSIVE LEGAL AND BUSINESS GUIDE by Donald Farber (1997) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
ENTERTAINMENT AND SPORTS LAWYER newsletter from ABA Forum on Entertainment and Sports Law (1982-) Titles to articles from 1982 to 1994 - many on copyright, none on patents (similarly for articles from 1994 to 2002 - none on patents)
MUSIC COPYRIGHT FOR THE NEW MILLENNIUM by David Moser (2001) Solely devoted to the use of copyright for protecting music, with no discussion of patents nor weaknesses of copyright.
MUSICIAN'S BUSINESS & LEGAL GUIDE by Mark Halloran (2001) Has six chapters on copyright, with no discussion of patents nor weaknesses of copyright.
KOHN ON MUSIC LICENSING by Al Kohn, Bob Kohn (2001) Has four chapters on copyright, with no discussion of patents nor weaknesses of copyright.
THE BUSINESS OF MUSIC by M. William Krasilovsky, Sidney Shemel (2000) Has four chapters on copyright, with no discussion of patents nor weaknesses of copyright.
ALL YOU NEED TO KNOW ABOUT THE MUSIC BUSINESS by Donald Passman (2000) Has two chapters on copyright, with no discussion of patents nor weaknesses of copyright.
MUSIC BUSINESS HANDBOOK by David Baskerville (2001) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
MUSIC LAW by Richard Stim (2001) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
MAKING AND MARKETING MUSIC by Jodi Summers (1999) Has eight pages on copyright, with no discussion of patents nor weaknesses of copyright.
LEGAL ASPECTS OF THE MUSIC INDUSTRY by Richard Schulenberg (1999) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
START AND RUN YOUR OWN RECORD LABEL by Daylee Deanna Schwartz (1998) Has one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
THE LAW (IN PLAIN ENGLISH) FOR PHOTOGRAPHERS by Leonard DuBoff (2002) Has chapter on copyrights and trademarks, with no discussion of patents.
EDUCATION OF A DESIGN ENTREPRENEUR edited by Stephen Heller (2002) Has nothing on copyrights, trademarks or patents.
KIRSCH'S HANDBOOK OF PUBLISHING LAW by Jonathan Kirsch (1995) Has one chapter on idea protection, and one chapter on copyright, with no discussion of patents nor weaknesses of copyright.
AIGA'S PROFESSIONAL PRACTICES IN GRAPHIC DESIGN edited by Tad Crawford (1993) Has three chapters on copyright, three chapters on trademarks, with no discussion of patents nor weaknesses of copyright.
A MUSEUM GUIDE TO COPYRIGHT AND TRADEMARK by American Museum Association (1999) Has no discussion of patents.
A LEGAL PRIMER ON MANAGING MUSEUM COLLECTIONS by Marie Malaro (1998) Has one section copyright, with no discussion of patents nor weaknesses of copyright.
MUSEUM LAW: A GUIDE FOR OFFICERS, DIRECTORS, AND COUNSEL by Marilyn Phelan (1994) Has discussion of copyright, with no discussion of patents nor weaknesses of copyright.
COPYRIGHT: CASE AND MATERIALS by Robert Gorman and Jane Ginsburg (2002) Includes 26 pages on idea/expression dichotomy, with no references to, let alone excerpts from, the many critical commentaries on the dubious nature of the dichotomy. The textbook is dedicated to Benjamin Kaplan, without including his critique of the idea/expression that is quoted on these Web pages.
COPYRIGHT LAW AND PRACTICE - by William Patry (1994/2000) Has 14 pages of text on the idea/expression dichotomy with no comments on, or citations to, the criticisms of the supposed dichotomy. Text does not observe that "idea" and "expression" are not defined in US Code.
LEGAL PROTECTION OF DIGITAL INFORMATION - by Lee Hollaar (2002) A book mostly on software copyright and patents that nicely illustrates the problems with way too many books (and court decisions) about (software) intellectual property: the software copyright discussion considers the impact of little to none of the software patent case law, the copyright discussion reflects little of the criticisms on this Web page, the software patent discussion considers the impact of little to none of the software copyright case law (this bi-directional lack of consideration a disease of most IP case law and articles), and for the most part there are no references to science and engineering articles and papers (for example, from the science and engineering societies that Mr. Hollaar is a member of) that, had they been cited and considered by the courts, would have (and still can) significantly alter the outcome of court decisions. There is also no observation that the mostly complete overlap of software patent and copyright scope is now spreading to much of art and entertainment. And he doesn't insult the incompetence of CONTU.
COPYRIGHT IN A GLOBAL INFORMATION ECONOMY by Cohen, Okedji, O'Rourke, Loren (2002) No mention of the growing overlap of patent and copyright. No mention of the growing problems with the idea/expression dichotomy, originality or independent creation.
INFORMATION LAW by Raymond Nimmer (2000) Multiple chapters on copyright, with no discussion of patents nor weaknesses of copyright.
BOORSTYN ON COPYRIGHT - by Neil Boorstyn (1994) Sections 11.05/11.06 cover the idea-expression dichotomy, but with no citations to criticisms of the supposed dichotomy. Illustrates use of the Computer Associates/Altai test to separate, without noting the Altai's test is borrowed from the patent world. Also illustrates use of Krofft's Total Concept and Feel test, similar enough to the "total look and feel" that was later shot down in the courts.
E-COPYRIGHT LAW HANDBOOK - Aspen Law Publishers (2002) Comprehensive guide to protecting music, books, movies, TV, and images on the Internet using copyright. Totally ignores the use of patent protection for many aspects of these forms of intellectual property.
OXFORD YEARBOOK OF COPYRIGHT AND MEDIA LAW edited by E. Barendt (1999,2000) Many chapters on copyright and a few on trademark, with no discussion of patents nor weaknesses of copyright.
KIRSCH'S HANDBOOK OF PUBLISHING LAW by Jonathan Kirsch (1995) Many chapters on copyright, with no discussion of patents nor weaknesses of copyright.
DIGITAL COPYRIGHT by Jessica Litman (2001) A very critical book reviewing 100 years of the politics of copyright extension. But no discussion of 100 years of the weaknesses of copyright (such as the idea-expression dichotomy), and no discussion of patents (for example, as an alternative protection).
US INTERNAL REVENUE CODE - Section 2055(e)(4) Works of Art and Their Copyrights Treated as Separate Properties in Certain Cases Section (B), titled "WORKS OF ART DEFINED" states "For purposes of this paragraph, the term "work of art" means any tangible personal property with respect to which there is a copyright under Federal law." It shouldn't be too surprising that tax lawyers have failed to realize that some works of art are protected with patents under Federal law, given that the copyright lawyers are generally so clueless. This part of the law should be changed to ".. copyright or patent under Federal law".
IDEAS, METHODS OR SYSTEMS - US Copyright Office Circular 31 US Copyright Office's brief discussion of the copyrighting of expression but not ideas, with no mention of the copyright law's lack of definitions for either term, nor mention of the many problems courts have in distinguishing the two.
COPYRIGHT REGISTRATION FOR WORKS OF THE VISUAL ARTS - US Copyright Office Circular 40 US Copyright Office's guide to copyrighting of visual arts works. The section, "Works of the Visual Arts", includes a long list of types of visual art that can be copyrighted, without mentioning that most of these types of visual art are also being patented.
DIGITAL MILLENIUM COPYRIGHT ACT 1998 DMCA The key aspect of the DMCA, 17 USC 1201(a)(1)(A) states: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title.". It has not occurred to anyone that some works protected by technological measures (such as encryption) might be protected with patents, requiring something like the Digital Millenium Patent Act to be passed. Once again, blind focussing on copyright.
LEGAL INFORMATION FOR ARTISTS AND ARTS ORGANIZATIONS - US National Endowment for the Arts Legal information US National Endowment for the Arts' Web page on legal aspects of art. Has a primer on copyright, and some links to other Web sites. No mention of patents or patent information Web sites.
NATIONAL INITIATIVE FOR A NETWORKED CULTURAL HERITAGE - NINCH National organization championing art and entertainment on the Internet. Much information on copyright, including transcripts from Copyright Town Meetings they have held around the United States since 1997. No information or discussion of patents, especially patents on cultural works.
Extension Courses on Copyright and Art Law University of California - San Diego, 2003 Many universities offer extension courses to business professionals, so that they can further their educations while working. Typical of many universities, UCSD's 2003 extension program is offering two courses, Principles of Copyright ("Copyright law protects music, architecture, computer programs, plays, Websites, movies, dance and visual arts ...") and Copyrights for the Web Designer and Graphic Artist, which for the most part, don't mention the parallel use of patents nor mention the problems with copyright.
WORLD INTELLECTUAL PROPERTY ORGANIZATION Copyright and Related Rights WIPO's introduction to copyright that doesn't mention that many (aspects of) works of art and entertainment that are copyrightable are also patentable in many countries around the world, especially the United States. WIPO web tends to keep discussions of patents and copyright separate.
UNESCO Culture & UNESCO: Copyright United Nations Educational Scientific and Cultural Organization. Much information on copyrights and culture, no recognition of, nor information on, the use of patents around the world to protect culture.
UK PATENT OFFFICE Works That Copyright Protects Includes a long list of types of art that can be copyrighted, without mentioning that most of these types of art are also being patented, if not in the United Kingdom, then in other countries such as the US where UK citizens can market their art products.
CANADIAN IP OFFFICE What is covered by copyright Includes a long list of types of art that can be copyrighted, without mentioning that most of these types of art are also being patented, if not in Canada, then in other countries such as the US where Canadian citizens can market their art products.
CREATIVE COMMONS Organization offering artists and entertainers an easier way to transfer some of their works' copyrights to other people. Lots of discussion of copyright with related Web links, with no discussion of patents nor weaknesses of copyright.
COPYRIGHT INFORMATION FOR PHOTOGRAPHERS - Professional Photographers of America Legal information PPA Web site for advising photographers on how to protect their products. Lots of discussion of copyright and some related Web links, but no discussion of the patentable aspects of photography.
FRIENDS OF ACTIVE COPYRIGHT EDUCATION - Copyright Society of America Images, Music, Words and Internet Copyright Society of America's effort to educate imagers, authors and musicians about protecting their products with copyright. No discussion of the patentable aspects of these product areas.
ARTISTS RIGHTS SOCIETY Copyright Information ARS's Web site for artists rights. Legal protection for artists focuses on copyright - no discussion of patents.
INSTITUTE OF ART AND LAW - paper "Copyright: is your copy right?" UK-based organization with Web site and seminars. No information or recognition of the patent law aspects of art.
DEPT. OF COMMUNICATIONS, IT AND ARTS - Australia Intellectual Property Branch Australian government's Web site for art intellectual property. Little to no information on patents, mostly all devoted to copyright issues.
ARTS LAW CENTRE - Australia Home page Australian government-funded organization for art intellectual propery. Much discussion of copyright issues, some discussion of design patents, and no discussion of utility patents for art and entertainment.
MUSIC PUBLISHERS ASSOCIATION Copyright Resource Center A bunch of information on copyrighting music, with no discussion of patents nor weaknesses of copyright.
BRITISH MUSIC RIGHTS - Lobbying group No mention of the patent systems incursions into the music business.
INTERNET MUSIC JOURNAL - Music business Web site Most IP information deals with copyrights.
INT. ASSOC. ENTERTAINMENT LAWYERS - mostly UK/US members Variety of publications and documents dealing with copyright, with no concern for patents on art and entertainment.
INT. FED. of PHONOGRAPHIC INDUSTRY - international organization Much information on copyright, none on patents.
MUSIC PUBLISHERS ASSOCIATION - FAQs Much information about copyright, none on patents
WHITE PAPER ON INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE - U.S. Dept. of Commerce (1995) Lengthy recommendations, later ignored and heavily criticized, written at the behest of copyright lawyer / Patent Commissioner Bruce Lehman, on copyright in the Internet era. Much like materials written at his behest in following years, the White Paper was totally devoid of any recognition of the information at this Web site.
TO SHORTEN COPYRIGHT, LOOK AT OTHER OPTIONS, INCLUDING CONSTITUTIONAL AMENDMENT - Marci Hamilton, Harvard Article arguing best way to deal with excessive copyright length is to shorten by constitutional amendment. Article does not consider or suggest switching to patents.
COPYRIGHT LAW AND THE CLAIMS OF ART - Anne Barron, LSE Argues that copyright law arbitrarily discriminates between some forms of art which are copyrightable and other forms which aren't. Suggests ways to resolve this discrimination with copyright. Does not suggest making use of patents, where such discrimination doesn't exist.