Prof. Randal C. Picker, University of Chicago Law School
June 25, 2013

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.

What about the Diet Coke cups?  Here the issue isn’t copying but rather about drawing boundary lines that separate copyright from everything else.  Artist clearly will get a copyright in her installation in gallery East.  She has undertaken exactly the sort of creative process and engagement with expression that is at the heart of copyright.  The public may question whether the Diet Coke cup qualifies as art, but, as Justice Holmes made clear more than a century ago in Bleistein, U.S. copyright doesn’t contemplate that federal judges will assess art quality.  Artist’s work will almost certainly qualify for copyright protection.

But the interesting question in the hypo – indeed, the whole point of the hypo – is to figure out where we stand as to the second Diet Coke cup at gallery West.  If we were to orient copyright around how readers and viewers perceive work, the East and West cups are identical.  That is the role that the art critics play in the hypo.  We could multiply the number of critics and have them all agree on the meaning of each of the Diet Coke cups if that would matter to how you think about the problem.

But I don’t think that the U.S. copyright law assesses expressiveness from the perspective of readers and viewers.  U.S. copyright law is author-centric, meaning, for copyright to arise, we need an “original work[] of authorship.”  We look to the author, not the reader.  I don’t think the gallery West employee authored, as such.  She certainly had no intent to author and was not seeking to express any of the ideas that the art critic saw in the apparent work.  The employee didn’t take any acts of authorship and indeed did nothing that would somehow distinguish her acts with the cup from the day-to-day tasks of ordinary life.  For me, the gallery West cup shouldn’t be thought to be within the copyright system.

Now to urinals, unmade beds and former presidents.  Click over to the website of the San Francisco Museum of Modern Art and read about Marcel Duchamp’s readymade movement and his Fountain.  Duchamp took everyday objects and submitted them to art exhibitions.  Then turn to Tracey Emin’s My Bed (a picture, a video and a recent New York Times story).  Most of us get out of unmade beds every morning and sometimes we make them and other days we don’t, but rarely do we have our unmade beds installed in art galleries.  As all of this suggests, we need to figure out how we cross over from life to copyright.  The urinal was outside of our system of expression when it was sitting in the J.L. Mott iron works showroom and it was Duchamp who brought it within the system of expression through his selection and situating of the object within the world of art.  I assume that we would say the same thing about My Bed.

I have never found the Supreme Court’s analysis in Harper & Row (1985) particularly satisfying.  Former president Gerald R. Ford had entered into a contract with Harper & Row for Ford’s memoirs.  As part of that process, Time magazine bought the rights for $25,000 to publish an excerpt from the memoir, so-called first publication rights.  Somehow The Nation magazine gained unauthorized access to the manuscript and scooped Time in a short article.  Time cancelled the deal and refused to pay the second half of the $25,000.  Harper & Row in turn sued The Nation for copyright infringement.

There are many moving pieces in the case, and indeed, the Supreme Court’s opinion is mainly about fair use, but I want to focus on this question of how we distinguish normal life from the creation of expressive works.  A good chunk of the dispute in the case focuses on conversations that Ford held while in office with other important officials, including Henry Kissinger.  Ford had set out some of those conversations in his memoirs and The Nation had repeated those conversations in its article.  The Supreme Court opinion suggests that The Nation had conceded the conversations to be copyrightable expression (see at page 549), but the earlier opinion in the Second Circuit is more illuminating.

Quite understandably, The Nation sought to embrace Section 105 of the Copyright Act, which declares works of the United States government as uncopyrightable.  Works that Ford wrote while in office should be covered by Section 105, and The Nation tried to apply the same standard to the quoted conversations.  The Second Circuit addressed this:

Indeed, it pushes language beyond its common sense bounds to characterize Ford’s conversational words as “a work prepared” by him. … Although another may pluck the facts from unrecorded words uttered by a public official while carrying out his public tasks, the phrasing of the sentence itself may be copyrighted by that official if and when it is later written down.

I am not sure what that means.  The first sentence seems clear enough and matches exactly what I am trying to capture here, namely, that there is a wall – sometimes elusive – that separates everyday acts and expressive acts.  So as we engage in conversations each day, we aren’t, as it were, copyrighting.  And that would be true even if those conversations were being recorded.  Widespread recording is where we are headed – perhaps where we are – so our ability to use the fixation requirement to separate life from copyright is almost certainly weakening and we will need a different tool for that.

Now consider the second sentence from the Second Circuit.  I don’t really understand it.  Writing it down later is basically delayed recording, but just less exact.  I assume that if the Ford-Kissinger conversations weren’t actually recorded contemporaneously, nonetheless, when Ford wrote them down later, he wasn’t engaging in a creative act.  He was just trying to write down the conversations accurately.  His selection of what to write down could give rise to compilation issues – selection, arrangement, and coordination of uncopyrighted facts – but that poses a slightly different issue than whether the underlying conversations were themselves copyrightable.

As I suggested above, the future is almost certainly more recording, not less, meaning more fixation and more chances for everyday life to spill over into copyright.  We are going to have to figure out exactly how encompassing we want copyright to be.  I am not sure if that is an act test or an intent test or some combination of the two, but I don’t think that the Diet Coke cup in the West gallery enters copyright; it is the absence of expressiveness by the employee in putting the cup on the pedestal that should do the work there.