Copyright Law's Delicate Balancing Act

• Published in: Computer and Internet Lawyer 2018-05, Vol.35 (5), p.25-27
• Main Author: Garfield, Alan
• Format: Article
• Language: English
• Subjects: Copyright; Copyright law; Costs; Court decisions; Cubism; Evaluation; Federal court decisions; Federal legislation; Laws; Management; Monopolies; Motion pictures; Public access; Public domain; Remedies; Supreme Court decisions
• ISSN: 1531-4944

Carrots for Creators with Bites for the Public Over the two centuries since federal copyright laws were first enacted, Congress has expanded the rights given to authors to include not only the rights to control the reproduction and distribution of works, but also the rights to control public performances and displays and the creation of adaptations (such as when a book is used as the basis for a movie).6 Congress also has exponentially expanded the types of works protected by copyright law so that they now include: literary works; musical compositions; dramatic works; pantomimes and choreography; works of fine, graphic and applied art; audiovisual works; recorded performances; and architectural designs.7 While Congress has given authors and their assignees expansive rights, it also has carved out numerous exceptions to these rights to advance the public welfare (or, in some cases, to advance the welfare of special interest groups). [...]while copyright owners can control the public performances of their works, there are exceptions in the Copyright Act for unauthorized public performances during teaching activities and religious services and in transmissions to blind and handicapped individuals.8 There are even exemptions for performances at horticultural fairs and social functions of nonprofit fraternal organizations if the proceeds go to charity.9 Rights, But Only for "Limited Times" The Constitution allows Congress to grant copyrights for only "limited Times. There are no Jets or Sharks in Shakespeare's work, just Montagues and Capulets, and no one in Shakespeare's play sings "Gee, Officer Krupke, krup you!" But Professor Melville Nimmer, who wrote the leading treatise on copyright law, pointed out that the plot of West Side Story methodically tracks the plot of Romeo and Juliet and contended that the makers of West Side Story would have needed a license from Shakespeare.21 On the other hand, the makers of The Cohens and The Kellys, a movie about a Jewish girl and Catholic boy falling in love and the hostile reaction from their families, would not have needed Shakespeare's permission to use the general idea of star-crossed lovers from warring clans. [...]courts found Google's scanning and digitizing of millions of books to be a fair use because it provided the substantial public benefit of making the books digitally searchable, and posed little threat to the sale of the books because Google search results reveal only small snippets from the books.24 Righ