When Shorthand Phrases May Only Serve to Confuse

Much has been written in recent days about the CJEU's decision in the so-called Safe Harbour case C362/14 involving personal data. To most IP fans, 'safe harbor' (especially the American spelling of it) means something completely different, namely the degree of immunity from litigation afforded to internet service providers of various types by section 512 to the US Copyright Act 1976 and Articles 12 to 15 of the EU eCommerce Directive 2000/31/EC. Neither of these pieces of legislation actually uses the term safe harbour (the EU Directive prefers the near simile 'mere conduit') yet we, laymen and lawyers alike, instantly recognise what it refers to. It is a shorthand way of referring to a set of circumstances and conditions which are intended to lead to a particular legal outcome. I was tempted to write 'certainty' but that would have been foolhardy.

We rely on such shorthand phrases to make day to day discourse easier, but this facility is easily undermined when the same phrase gains currency in an entirely different sphere, as with the data protection example already quoted. There are a number of other examples where this duality can cause confusion, such as 'public domain' and 'derivative work' to name but two of them. These words can lack any legal definition, and indeed are often used in place of legal concepts too complex to be defined in a single sentence, hence their value as shorthand tags.

Public Domain

Public domain is probably one of the most pernicious phrases of this type. Its more general meaning of something which is accessible by the public can lead to the mistaken belief that such information or work is therefore also freely available to be copied. The classic type of example is "I found it using Google, so it's OK to use this image as it's in the public domain". This situation is not helped by the fact that, in an IP context, the more legally correct 'not copyright protected' is something that anyone can say or write in connection with a work without any legal consequence even if it is untrue. The same situation is also not helped when legislation has had the retroactive effect of restoring copyright to works which were previously out of copyright, often in a less than transparent way. Hence the concept of the public domain in the context of copyright lacks certainty. Given that primary copyright infringement is a matter of strict liability, it is strange that making a false claim to copyright or a false claim that copyright no longer exists in a work, are not sanctioned per se, while falsely attributing a work to an author (section 84 CDPA) is one of the moral rights that copyright law does see fit to protect. Arguably false statements like the former  might be actionable under the tort of deceit but proving intent will rarely be easy, and in any case, the existence of a false statement to the effect that copyright no longer exists (or is waived to some degree by a false Creative Commons licence) will not be a defence against a claim of primary infringement.

Derivative Works

Derivative as a means of describing a work is equally problematic, but for different reasons. In this case there is a legal definition under US Copyright law (section 101) to cover a very wide range of subsidiary works derived from an underlying work: 

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

but in most other jurisdictions there is no such corresponding legal meaning yet the term is still used, often to mean much the same thing as in the USA, by those in the UK or EU, because it is readily understood that the word means something based on a pre-existing protected work. But nowhere in UK or EU copyright law will you find the term 'derivative'. It is true that in the 2010 Systrans case (T-19/07) the General Court of the CJEU, perhaps unwisely, used the word (10 times) with this meaning, albeit in the context of software (the Software Directive 2009/24 merely refers to "translation, adaptation, arrangement or any other alteration ..") thus giving the phrase slightly more legal weight than it had had previously. The UK's Copyright Designs and Patents Act provides nothing so sweeping as the US definition; the nearest equivalent being 'adaptation' (section 21) which only applies to a very limited list of specific examples, and only then for literary, musical and dramatic works. The lack of a statutory application to artistic works means that the courts have to decide this themselves, with varying results. Article 3 of the German Urheberrecht Gesetz also uses the word adaptation (Bearbeitungen) but in a wider context than UK law. The Berne Convention (Article 1) uses the term derivative works as a sub-heading but has a fairly ambiguous description ('other alterations') of what it encompasses. The EU Directives largely avoid any direct definition of copyright works, let alone derivatives or adaptations, leaving this to national legal frameworks.

Why does this lack of a universally-accepted definition of 'derivative work' matter? The main reason is that the worlds of derivative works, adaptations, fair use (especially the transformative use part) and fair dealing (parody/caricature/pastiche) all intersect. What's more there are different approaches to whether the relationship between the underlying work and derivative work, such as whether permission is required, that in turn can affect the question of originality in the derivative work. There is now a wide variation between how the courts in the USA, UK and other EU member states, along with the CJEU, interpret and apply the law in this area. As far as harmonised copyright law is concerned, the EU generally is still in the foothills of settled law on matters surrounding derivative works, whereas in the USA there exists a large body of caselaw around transformative use, albeit often with conflicting outcomes, such that universally speaking, the term 'derivative' work is far from precise and is heavily dependent on the jurisdictional context.

Conclusion

As the internet becomes ever more central to many infringement cases, this lack of uniformity between the key players is, to put it mildly, unhelpful. Of course this does not undermine the basic value of such shorthand terms such as public domain, derivative work, or safe harbo(u)r in everyday usage, but I suggest litigants-in-person, advocates and the courts themselves should eschew their use in formal settings where this leads to imprecision.

 photo credit: MiNe-5DII_103-2751UG via photopin (CC BY 2.0 license)

Disney film on Mary Poppins Disney adaptation

Photographic representation of 
the typical mood of the
average copyright lawyer

The legal understanding and regulation of derivative works is a fascinating area of copyright, which can become even more appealing when discussion concerns Britain's best-loved nanny: Mary Poppins.

As readers of this Blog will know, Mary Poppins is set in 1910 London and tells the magical adventures of Jane and Michael Banks and their practically-perfect-in-every-way nanny. 

News have been spread that production of a new Disney motion picture starring Tom Hanks and Emma Thompson, and entitled Saving Mr Banks, has begun.

The film promises to be a must-see for any copyright lover, in that it tells the story of Walt Disney's twenty-year courting of Australian born writer PL Travers to secure the rights to her Mary Poppins children's novels. 

The 1964 Disney adaptation [which, in this blogger's opinion, is just fantastic, also thanks to its great soundtrack (how can a tear not drop from your eyes when you listen to songs such as Feed the Birds?)] was realised with PL Travers as an advisor to the production and was a huge success, both financially (Mary Poppins was the #1 moneymaker of 1965 and Walt Disney used the money to finance most of the 1967 expansion of Disneyland) and among the critics. As summarised by Drew Casper in 2011:

"Disney was the leader, his musical fantasies mixing animation and truly marvelous f/x with real-life action for children and the child in the adult. Mary Poppins ... was his plum. ... the story was elemental, even trite. But utmost sophistication (the chimney pot sequence crisply cut by Oscared "Cotton" Warburton) and high-level invention (a tea party on the ceiling, a staircase of black smoke to the city's top) characterized its handling."

As explained in a New Yorker article, despite such warm reception, PL Travers thought that the film had done a strange kind of violence to her work and would have eclipsed everything else that she had or would achieve, turning her into a persona: a spinsterish children’s author, creator of a spinsterish character. 

Julie Andrews, Walt Disney and
PL Travers at the Mary Poppins première

As reported by Wikipedia, in particular PL Travers disapproved of the dilution of the harsher aspects of Mary Poppins's character, felt ambivalent about the music, and hated the use of animation. 
At the première (which she had to ask to attend, since she had not been invited), the writer told Disney that the animated sequence had to go. Disney responded by walking away, saying as he did, "Pamela, the ship has sailed". Put it otherwise, PL Travers had to send the medicine down, with or without the famous spoonful of sugar. 

Appalled at Disney's adaptation, PL Travers prohibited any further cinematographic versions of the other Mary Poppins novels. 

In the 1990s she consented to the realisation of the Mary Poppins musical, but she did so upon condition that only English-born writers and nobody from the 1964 production were involved.  

Being this the story behind the Disney film starring a more-than-perfect Julie Andrews as Mary Poppins, it will be interesting to see what perspective Saving Mr Banks will adopt in telling the story of Walt Disney and PL Travers.

Is Titanic 3-D a new work?

Les Demoiselles d'Avignon

An interesting article recently appeared in The New York Times. It concerns the use in both the 1997 Titanic film and its 2012 3-D version of a copy of Pablo Picasso's most celebrated 1907 painting Les Demoiselles d'Avignon. 

As is well known, the painting did not sink with the Titanic, but placidly hangs on the walls of the Museum of Modern Art (MoMA) in New York. 

Picasso died in 1973 and the rights (including image rights) in the huge artistic legacy the Málaga-born artist left behind are now administered by the Picasso Estate.

At the time when the original Titanic film was made, the estate refused to grant film-maker James Cameron permission to include any images of Les Demoiselles d'Avignon. However, Cameron used an image of the painting anyway and Titanic features a scene in which Rose-Kate Winslet looks at what is presumably a copy (?) of the painting.

Rose while admiring Picasso's revolutionary painting

It was only after the Artists Rights Society complained that the film-maker agreed to pay a fee for the use of the image of Picasso’s 1907 work.

Now that Cameron has released a 3-D version of Titanic, the Artist Rights Society has asked him to pay again for the use of the painting's image, asserting that the 3-D version of the film is a new work and, as such, is not covered by the previous agreement.

“I don’t expect we’ll have any difficulty,” said Theodore Feder, president of the society, who contacted James Cameron a few days ago.

Arguing that a 3-D version of a film released a few years earlier is a new work may have interesting consequences, which go far beyond requests for using the image of a painting. 

Copyright: king of the world?

This view implies that Titanic 3-D is a derivative work, as per §101 of the US Copyright Act, according to which

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

However, as is made clear by §103(b), 

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

One may wonder whether the use of 3-D techniques is sufficient to a finding that "new" copyright subsists in the entire 3-D version of a film and be such as to trigger new requests for the use of images which featured in earlier 2-D version. 

Certainly, if this was the case, then would it be sufficient to release 3-D versions of films in which copyright is about to expire to extend the duration of protection almost indefinitely? In other words: is 3-D the new colourisation as far as copyright is concerned?