Copyhype

This weekend, Fifty Shades of Grey opens in theaters. The family-friendly tale of young love is based on a series of best-selling novels by British author E.L. James. Jonathan Band, a lobbyist for the Computer and Communications Industry Association (CCIA), yesterday posted an article about the film on CCIA’s Project Disco blog. In it, Band makes the extraordinary claim that “fair use is to blame—or thank—for the existence of the Fifty Shades franchise.”

Band correctly notes that James “originally wrote the trilogy as fan fiction of Stephanie Meyer’s popular Twilight series… At some point the popularity of the story must have convinced James of its potential commercial value, so she eliminated the vampires and the potentially infringing references to Twilight characters and plotline.” The series was indeed subsequently published, and indeed became commercially valuable. Band says, “Over 100 million copies of the novels have been sold, the first novel of the series has been on the New York Times bestseller list for 140 weeks, and the novels have been translated into 51 languages.” And soon, the film version will be playing in theaters worldwide.

So how, according to Band, does fair use play a role here? See if you can follow along. First, Band makes the erroneous legal assertion that “Fan fiction is a quintessential fair use.” There are no such categorical rules in fair use; it requires balancing multiple factors on a case-by-case basis.¹17 USC § 107 provides in part that “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Second, he makes the questionable presumption that any fanfic author’s fair use of a copyrighted work automatically privileges any third-party site’s hosting and distribution of that work online, thus shielding the site that James first uploaded her story to. Finally, by sharing her fanfic stories on a site devoted to Twilight fan fiction, Band speculates that “James almost certainly would have received constructive comments from other fans of ‘Twific’ (Twilight fan fiction) recommending stylistic changes and plot twists, and urging her to continue writing.”

That is why fair use was essential to 50 Shades. Because who’s ever heard of a non-fanfic based writer community?

Idea Expression

But what’s really curious about the example that Band chooses is that it serves as a perfect example of how, contrary to persistent claims by copyright critics, copyright does not stifle creativity.

James was inspired by Stephanie Meyer’s work and admittedly copied it. Yet, with a bit of additional creativity, she was able to produce her own work that is clearly not infringing. This is thanks to the foundational—yet underappreciated—distinction between idea and expression in copyright law.

As the First Circuit has explained, “[I]n most contexts, there is no need to ‘build’ upon other people’s expression, for the ideas conveyed by that expression can be conveyed by someone else without copying the first author’s expression.” ²Lotus Development Corp. v. Borland Intern., Inc., 49 F. 3d 807, 818 (1st Circuit 1995). This distinction mediates between the need for a commons of ideas that all authors can draw upon freely and the exclusive rights that facilitate the commercialization of expressive works. ³See, e.g., Stan J. Liebowitz & Stephen Margolis, Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects [PDF], 18 Harvard Journal of Law & Technology 435, 453 (2004) (“Copyright protects expression, not ideas. Many economists have seen It’s a Wonderful Life, the Jimmy Stewart movie classic, and have read The Choice, Russell Roberts’ treatment of free trade. Although Roberts uses the plot device of a man who must return to earth to earn his angel’s wings, his book does not infringe the movie’s copyright. Though clearly an important creative element of the movie, the plot device is not protected by copyright… Artists do indeed draw on old themes, and they are allowed to do so. On the other hand, they are not allowed to incorporate details of copyrighted works. So the economists are correct in that copyright does raise artists’ costs—copyright forces artists to do some work themselves. However, since only specific expressions are protected, extensive parts of the culture are not, as it is sometimes claimed walled off from creative re-use.”). The fact that all works are built on existing works while the vast majority of works do not infringe on other works proves the centrality and effectiveness of the idea expression distinction.

Perhaps it is the case that the operation of the idea expression distinction is so fundamental to copyright that it becomes easy to ignore. As copyright law professor Jessica Litman has observed, “The concept that portions of works protected by copyright are owned by no one and are available for any member of the public to use is such a fundamental one that it receives attention only when something seems to have gone awry.”⁴Jessica Litman, Public Domain, 39 Emory L.J. 965, 977 (1990). And perhaps the line between idea and expression, as Landes and Posner observe, is “often hazy.” ⁵William M. Landes and Richard A. Posner, An Economic Analysis of Copyright Law 18 J. Leg. Stud. 325, 349 (1989). Nevertheless, the vast majority of works both build upon existing works yet do not infringe upon existing works. This is due primarily to the idea expression distinction.⁶Accord Jane Ginsburg, Authors and Users in Copyright, 45 J. Copyright Soc’y USA 1, 5 (1997) (“The fair use doctrine … and the idea/expression dichotomy … relieve most of the tension that exclusive rights for first authors may cause when confronted with the creative demands of second authors.”).

To Boldly Go Where No One Has Gone Before

A good example of the idea expression distinction in action can be found in the development of the original Star Trek television series. In The Making of Star Trek, Gene Roddenberry notes some of the ideas that influenced his concept, including, “A. E. van Vogt’s tales of the spaceship Space Beagle, Eric Frank Russell’s Marathon series of stories, and the film Forbidden Planet (1956).”⁷Whitfield, Stephen PE; Roddenberry, Gene (1968). The Making of Star Trek. New York: Ballantine Books. ISBN 0-345-31554-5. OCLC 23859. When Roddenberry first pitched the show, he described it as a “‘Wagon Train’ concept”, referring to the popular Western television show that ran from 1957-65. The captain of the Enterprise was described as “A space-age Captain Horatio[] Hornblower,” an allusion to the protagonist of a series of novels by author C. S. Forester.

Roddenberry created Star Trek by copying from these—and undoubtedly other—sources. Yet no one would consider such copying actionable under copyright law. Roddenberry, like all creators, copied, rearranged, and combined ideas from multiple sources. He didn’t, however, need to copy material expression from any existing works.

This is how the distinction between idea and expression, on a day-to-day basis, works. It mediates between protection of creative works and recognition that any creative work necessarily borrows from other creative works. It allows remedies against misappropriation while allowing creative appropriation. It gives creators and courts a rough guide for distinguishing between property and the public domain. ⁸Accord Warner Bros. v. American Broadcasting Companies, 720 F. 2d 231, 240 (2nd Cir. 1983) (“Though imprecise, [the idea-expression dichotomy] remains a useful analytic tool for separating infringing from non-infringing works”). The result is billions of dollars in economic activity creating and disseminating creative works with a trivial amount of litigation involving an idea/expression issue.

Progress of Science

Not only does copyright facilitate the dissemination and reuse of ideas, but its restraints on expression may also be beneficial to the public and culture. In Creating Around Copyright, Joseph Fishman writes that, as cognitive psychology, management studies, and art history has all shown, creativity requires restraints. Certain types of constraints, including those inherent in copyright law, are generative. Fishman talks specifically about the derivative work right, which is “is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” ⁹17 USC § 101.

Without a derivative work right, we may get more homogenization. That’s damaging if the name of the game is creativity. The wider the range of undiscovered appropriate solutions to a problem, the more audiences may miss out when problem solvers become locked in to a single solution. And if audiences value a multiplicity of solutions separately from the content of those solutions, the cost of that lock-in becomes exacerbated. The expressive arts, where appropriateness is often extremely ill-defined and where we desire new works even though there’s nothing wrong with the old ones, check both of those boxes. To the extent that the derivative work right stimulates create-around effort, it furthers—not frustrates—copyright’s constitutional goal of “stimulat[ing] artistic creativity for the general public good.” Thus, although the current derivative works system constrains more broadly than a hypothetical blocking copyrights system, it may also constrain more wisely.

James’ original story, when it was still a “fanfic” of Twilight, would more than likely be considered a derivative work of that series. Yet James was able to “create around” Meyer’s original expressive elements to create a work that builds upon an existing work in a noninfringing way. And she did not need to rely on fair use to do so.