The Routledge Companion to Copyright and Creativity in the 21st Century

387 Pages·2021·4.777 MB·English

by  Michelle Bogre, Nancy Wolff (eds.)

THE ROUTLEDGE COMPANION
TO COPYRIGHT AND CREATIVITY
IN THE 21ST CENTURY
These collected chapters and interviews explore the current issues and debates about how copy-
right will or should adapt to meet the practices of 21st-century creators and internet users.
The book begins with an overview of copyright law basics. It is organized by parts that cor-
respond to creative genres: Literary Works, Visual Arts, Fine Art, Music, Video Games and
Virtual Worlds, Fashion, and Technology. The chapters and interviews address issues such as
copyright ownership in work created by Artificial Intelligence (AI), the musical remix market,
whether appropriation is ever a fair use of a copyrighted work or if it is always theft, and whether
internet-based platforms should do more to deter piracy of creators’ works. Each part ends with an
essay explaining the significance of one or two landmark or trendsetting cases to help the reader
understand the practical implications of the law.
Written to be accessible to both lay and legal audiences, this unique collection addresses con-
temporary legal issues that all creators need to understand and will be essential reading for artists,
designers, and musicians as well as the lawyers who represent them.
Michelle Bogre, Esq., is a Professor Emerita from Parsons School of Design in New York City,
where she taught photography and copyright law for artists and designers. She is the author of
three other books: Photography As Activism: Images for Social Change; Photography 4.0: A Teaching
Guide for the 21st Century; and, her newest, Documentary Photography Reconsidered: Theory, History
and Practice.
Nancy Wolff is a partner at the bi-coastal firm Cowan, DeBaets, Abrahams & Sheppard, LLP.
She is co-chair of the firm’s litigation department, Past President of the Copyright Society of the
USA (CSUSA), and member of the American Bar Association (ABA) IP Task Force on Copyright
Reform. She is the author of Best Practices in Image Licensing, published in the Licensing Journal,
and The Professional Photographers Legal Handbook.

THE ROUTLEDGE
COMPANION TO COPYRIGHT
AND CREATIVITY IN
THE 21ST CENTURY
Edited by
Michelle Bogre and Nancy Wolff
First published 2021
by Routledge
52 Vanderbilt Avenue, New York, NY 10017
and by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2021 selection and editorial matter, Michelle Bogre and Nancy Wolff
individual chapters, the contributors
The right of Michelle Bogre and Nancy Wolff to be identified as the authors of
the editorial material, and of the authors for their individual chapters, has been
asserted in accordance with sections 77 and 78 of the Copyright, Designs and
Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from the
publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identification and explanation without intent
to infringe.
Library of Congress Cataloging-in-Publication Data
Names: Bogre, Michelle, editor. | Wolff, Nancy (Editor of Routledge
companion to copyright and creativity), editor.
Title: The Routledge companion to copyright and creativity in the
twenty-first century / edited by Michelle Bogre and Nancy Wolff.
Description: New York, NY; Milton Park, Abingdon,
Oxon: Routledge, 2021. | Includes bibliographical
references and index.
Identifiers: LCCN 2020025645 (print) | LCCN 2020025646 (ebook) |
ISBN 9781138999251 (hardback) | ISBN 9781315658445 (ebook)
Subjects: LCSH: Copyright. | Copyright—Art. |
Creative ability. | Creation (Literary, artistic, etc.)
Classification: LCC K1420.5 .R685 2021 (print) |
LCC K1420.5 (ebook) | DDC 346.04/82—dc23
LC record available at https://lccn.loc.gov/2020025645
LC ebook record available at https://lccn.loc.gov/2020025646
ISBN: 978-1-138-99925-1 (hbk)
ISBN: 978-1-315-65844-5 (ebk)
Typeset in Bembo
by codeMantra
Nancy Wolff
To all the creative people I have met and who have inspired me: my love of
copyright comes from what you do. To all my copyright law colleagues:
your insights inspire me to keep learning more every day.
Michelle Bogre
This book is dedicated to creators everywhere and the IP lawyers who work
tirelessly to keep the system functioning.

CONTENTS
Preface xvi
Acknowledgments xviii
List of Contributors xix
PART I
Copyright Basics 1
1.1 Copyright Basics: What You Think You Know May Not Be True 3
Legal Systems 3
Copyright Is Federal Law 3
Copyright Protects Creative Expression 4
Joint Copyright 6
Work Made for Hire 6
Copyright Holders’ Rights 7
Registration 7
Infringement 8
Fair Use 10
Digital Millennium Copyright Act 11
Termination Rights 12
Moral Rights 13
Visual Artists Rights Act 13
Works Integrated into Buildings 14
PART II
Literary Works 15
Introduction 15
2.1 Piracy of Books in the Digital Age 18
Cheryl L. Davis and Umair Kazi
vii
Contents
Piracy in the Digital Age 18
How Does the Law Combat Online Piracy? 22
Suggested Changes to Better Combat Online Piracy 23
Conclusion 26
2.2 Is a Picture Really Worth More Than a Thousand
Words? (The Scope of Copyright Protection
for Fictional Characters) 29
Marcia Paul
Overview of Existing Law 30
What, If Any, Protection Should Be Available for Fictional Characters? 34
2.3 Fair Use: The Judicial Mix- Up over “ A Mixed
Question of Law and Fact” 39
Terence P. Keegan
Nineteenth- Century Roots of Misunderstanding “ Mixed Questions” 40
Fixing the “ Mixed”: Contemporary Supreme Court Approaches 41
Do Not “ Shy Away” 43
Conclusion 44
Acknowledgment 44
2.4 Fair Use: The Linchpin to the Future of the Copyright Act 48
Michael Donaldson
Another Way to Advise Clients and Predict Results 50
Parody 52
Conclusion 55
2.5 S elf- Publishing Revolution: Copyright Pitfalls for
Writers Who Go It Alone 57
Francine Ward
Protecting Creative Content 58
Avoiding Lawsuits: Do Not Infringe Someone Else’s Copyright 60
Collaborating without Clearly Defined Expectations 63
Contracts, Agreements, Letter A greements— Whatever You Call Them,
They Are Necessary! 64
2.6 Landmark Case: Authors Guild v. Google, Inc., 804
F.3d 202 (2d Cir. 2015) 66
viii
Contents
PART III
Visual Arts Introduction 69
Introduction 69
3.1 How Close Can You Get: Substantial Similarity in the Context of
Works of Visual Art 72
Dale M. Cendali and Shanti Sadtler Conway
Photography 72
Paintings and Drawings 73
Textiles 75
Sculptural Works 75
Conclusion 76
Acknowledgment 76
3.2 Gorgeous Photograph, Limited Copyright 78
Justin Hughes
1884: Photographs Are Copyrightable (S ometimes) 78
Limited, but Meaningful Copyright Protection 79
What Does this Mean in Terms of Modern Practices? 82
Photographs and Fair Use Claims 85
Conclusion 88
3.3 Copyright Concerns for Visual Journalists 91
Mickey H. Osterreicher
Monkey Selfies and Drones 91
Fair Use 92
Registration and Implied Copyright 95
Conclusion 96
3.4 Social Media: Use It and Lose It? 97
Joseph T. Baio
To Post or Not to Post: That Is the ( First) Question 98
Pre- P osting Protections: What Can You Do to Protect the Work You Created? 98
Posting on Social Media: The Terms of Service ( TOS) May Determine Your Rights in
Any Posted Content 98
Your Works Have Been Pirated: What Can You Do to Pursue Your Rights and Be Compensated? 101
Do the Infringers Have to Pay Your Legal Fees If You Win? 104
What Is the Answer under Current Law to the Question: “ Social Media:
Use It and Lose It?” 105
ix