Prof. Randal C. Picker, University of Chicago Law School
December 12, 2013
For the first time in four years, starting in January, I am teaching Copyright. It is good to separate from courses to gain the perspective that comes with distance, but I am also eager to shake off the rust to rethink old cases and have a chance to work through new cases. You probably shouldn’t spend more than a year preparing for the first class, but I have been using this blog to help get ready (see my May 22, 2012, post on “Copyright, Day 1” and my June 25, 2013, post on “Copyright Day One Redux: Of Urinals, Unmade Beds, and Presidents”).
I am back again to consider blank pieces of paper. Take one, crumple it up, and toss it into a trashcan. I assume that we think that that act exists outside of the copyright system. After all, I just threw away trash. We do that every day without triggering copyright. Now retrieve the paper from the trash can, put it on the table and attach a label to it, say, “Entropy in 3D.” I assume that if I had created the same form in stainless steel and hung it in my living room, we would have little difficulty situating Entropy in copyright. The copyright statute defines “pictorial, graphic, and sculptural works” to include “two-dimensional and three-dimensional works of fine, graphic, and applied art,” and while none of those terms is defined, there should be little doubt that the stainless-steel version of Entropy qualifies.
But we might step back and imagine how the stainless-steel version would be produced, as that may help us understand the crumpled-paper version. Authoring a work and embodying the work in a particular medium can be two very different processes. When I write a poem on another blank piece of paper on the first day of class, there is no obvious separation of authoring and fixing: The poem is first perceived as I write it on paper. Perhaps the entire poem comes to me in a flash and I could recite it before putting it on paper, but, as I write it on paper, it enters copyright.
But high-end art works like the stainless-steel version of Entropy in 3D aren’t necessarily physically produced by the individuals we denominate as the authors of those works. Authorship, as it were, and fixation/embodiment of the work in a tangible medium may be separated in a way that they are not in the case of my poem. To produce Entropy, an artist might engage an art fabrication specialist such as Peter Carlson to actually manufacture a particular work. Carlson’s company has produced works for many well-known artists, including building five different versions of Jeff Koons’s well-known Balloon Dog. (And Balloon Dog (Orange) recently sold at auction for $58.4 million, the highest price ever at auction for a work by a living artist.) But an artist wouldn’t start with stainless steel and instead would naturally start in a less expensive and easier to work with medium, such as paper, to create the work initially.
Circle back to my original piece of paper retrieved from the trashcan. The essence of copyright protection in Section 102 looks to original works of authorship that are “communicated.” As trash, the paper sat outside of the system, but at the point that I retrieved it, labeled it, and put it on a pedestal, presumably I was seeking to communicate something. At that point, we have moved from trash to copyright, to a communicated original work of authorship. Moving from the paper version to the stainless-steel version is just to make a second copy of the work.
Take one more step with two more pieces of paper. Crumple the two pieces of paper – artistically of course! – and attach those along with the first one to a couple of bent metal hangers. We will have created a mobile, meaning a structure with fixed elements but where the particular relationship of those elements to each other may change moment by moment; a low-rent version of the types of mobiles famously created by Alexander Calder.
The Calder mobiles provide a nice example of the idea of a fixed work, even though there is constant change in the physical arrangement of the work. We shouldn’t think of the fixation of the work as requiring that the mobile be unchanging. That isn’t a mobile but rather instead a stabile like the Calder Flamingo in Chicago. The essence of the mobile is change, but we should think of the work itself as being fixed for the purposes of copyright. The work is the various pieces that make up the mobile and the structure that attaches them and allows movement of the components. The fact that random movement occurs in the mobile as the wind shifts and that the mobile may move through an infinite number of positions possibly never returning to the same position twice shouldn’t mean that it isn’t fixed for copyright purposes or that the mobile is uncopyrightable.
The definition of “fixed” in the Copyright Act is, I think, straightforwardly broad enough to embrace something like the Calder mobile. That definition requires that the work be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” The mistake here would be to think of the work and fixation as requiring a particular arrangement of the components of the mobile – again, a stabile rather than a mobile – rather than thinking of the work as being about movement and the way in which the components of the work change in their relationship to each other. That conception of the work is quite fixed and is something that we readily perceive through the mobile. There are broader questions about how copyright should interact with randomness but those are questions for another day (or at least another post).