Picker on Teaching Copyright, Day One
I am delighted to be teaching Copyright again next year after not doing so for three years and so I find my mind drawn each day to topics for the class. The first day of class is very much a day for fundamentals and I took a stab at some of those in a post on this blog a year or so ago. Recently, I have been thinking about urinals, unmade beds, and former president Gerald R. Ford. Let me walk through a hypo and then I will try to link up that seemingly odd collection.
We have two art galleries, call them East and West. Both are opening new shows and have one more piece to install on a central pedestal for the opening that evening. At gallery East, the Artist herself arrives to install the last piece, a 24-ounce half-empty Diet Coke cup, with a dented lid and a bendable straw sticking out of the lid. After much consideration, Artist figures out exactly the right placement of the cup on the pedestal. No title is attached to the work. Meanwhile, at gallery West, the final piece for installation can’t be found, but the show is to be opened without it. But a few minutes before the opening, an employee of gallery West accidentally sets her half-drunk 24-ounce Diet Coke cup on the pedestal in, it turns out, exactly the same spot and location as the corresponding cup at gallery East, thereby duplicating exactly the installation in gallery East. One art critic attends the show at East, while a second attends West, and each publishes a review of the show they attended in their local newspapers. Somewhat surprisingly, the reviews are word-for-word identical. Each focuses on the Diet Coke cup as capturing commentary on our outsized, disposable culture.
How does U.S. copyright law apply to this situation? We have two sets of duplicates – the newspaper reviews and the Diet Coke cups – and yet no copies. The core wrong of copyright is copying and, by assumption, there is no copying in my hypothetical. The core requirement of U.S. copyright law is an “original work of authorship fixed in any tangible medium of expression.” Original is understood to mean that the author didn’t copy the work from some other source; it doesn’t mean that no one else had ever created the work. The requirement is about the source of the expression and not about its overall novelty. Copyright law and patent law are quite different on this dimension. In copyright, independent creation is a full defense to an allegation of copyright infringement, while in patent law, for most purposes, independent creation means that you finished second in the race and get nothing. All of this means that each of the newspaper pieces will be fully copyrightable.