19 April 2008

Unreal Estate (6)

So — after much too long an interval — I'll return to trying to make some sense of WFH under the Copyright Act. At the moment, we're trying to figure out what the following acceptable categories of WFH really mean:

(a) a contribution to a collective work;

(b) a part of a motion picture or other audiovisual work;

(c) a translation;

(e) a compilation;

Unfortunately, my usual method of interpreting the Copyright Act — start at the end and work toward the beginning — does not really help here; the first and last of these four categories are by far the most difficult (and related), so I'll start there.

On first impression, it seems that (a) and (b) are really the two types of works (of these four) that are most closely related. However, that depends upon ordinary-English meanings of "collective," and not the copyright term-of-art "collective work." In copyright terms, a "collective work" is a single work that does not have separable copyrightable components, but results from the work of more than one Author (in the Constitutional sense). That is why it is more closely related to a "compilation" than to either of the other two categories. The distinction between a "collective work" and a "compilation" is in that separability, and in particular in nonallusive separability.4

Allusive separability leads us into choice (b). Consider the bombast that passes for "musical scores" in most motion pictures coming out of Hollywood, certainly since the 1950s. In an artistic and copyright sense, the accelerando treatment of the cellos underneath the star's entrance in Jaws5 could be a "separable" work. It could even be put into a medley with other works from the same (overrated) composer. However, even separated, the music is allusive: One simply doesn't listen to any of the leitmotifs from Star Wars without thinking Star Wars (or, perhaps, Wagner and Triumph of the Will, but that's sort of beside the point). This illustrates one of the differences between the collective work/compilation on the one hand, and the motion picture or other audiovisual work on the other: The individual components may well have an independent copyright existence, but have very little independent artistic existence in the latter instance.

And that leaves us with "translation." This is a particularly unfortunate choice of term, and the legislative history is maddeningly (and simultaneously!) circular and self-contradictory. It includes the most obvious example: From, say, Latin to English (and the converse). Once one gets beyond this obvious example, though — or moves beyond textual works to others — things get much, much more complicated and unclear. For example, would a "translation" of a work also include encoding for the visually impaired? How about for those with aural-visual synesthesia? Would recasting verse into prose — especially from slightly archaic verse — constitute a "translation"? Does use of motion-picture technology wandering over a still photograph (a la Ken Burns) constitute a "translation" (leaving aside that it is also a "motion picture or other audiovisual work")? If Congress meant strictly linguistic translation, it should have said so; it certainly managed to be oververbose elsewhere in the WFH definitions!

So, then, that's what does fall inside the eligible works. Next time, I'll point out some types of works commonly assumed to be WFH that do not fall inside the statutory definition.

  1. Some might argue that a compilation copyright necessarily belongs to a non-contributor to the collection; for example, the compilation copyright for a magazine filled with freelance works. However, this depends both on commercial assumptions and on construing the accidents of typographical order — often based on ad sales and the layout accidents due to prior pieces — as original in the copyright sense.

    Further, there is some argument — an increasingly less-tenable argument in the face of Feist and the Dorothy Parker litigation — that the selection and arrangement of materials for a "compilation" is of greater weight than for a mere "collective work." Whether that is true or not, it is very much tangential to what I'm doing with this essay.

  2. Of course the shark is the star. After all, ultimately he wins... if only because he (or at least his progeny) returns for the sequels.