I’m spending my time this week briefing (i.e., summarizing) intellectual property cases for my internship. One of them is Nash v. CBS, Inc., 899 F.2d 1537 (7th Cir. 1990): basically, author Jay Robert Nash wrote a non-fiction book about famed criminal John Dillinger, imagining that he did not die at the hands of the FBI but instead lived to a ripe age in California. An episode of the CBS police procedural Simon and Simon used this premise and Mr Nash sued for copyright infringement. It didn’t go so well for him.
But aside from the excitement of murder and chases and intellectual property policy is the fun of these quotes, where the judge talks about the collaborative reality of writing (emphasis is mine):
At each instant some new works are in progress, and every author is simultaneously a creator in part and a borrower in part. In these roles, the same person has different objectives.
Because any new work depends on others even if unconsciously, broad protection of intellectual property also creates a distinct possibility that the costs of litigation – old authors trying to get a “piece of the action” from current successes – will prevent or penalize the production of new works, even though the claims be rebuffed. Authors as a group therefore might, prefer limited protection for their writings – they gain in the ability to use others’ works more than they lose in potential royalties. See William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Studies 325, 332-33, 349-59 (1989).
And one more, for fun:
Learned Hand, whose opinions still dominate this corner of the law, observed in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), that all depends on the level of abstraction at which the court conceives the interest [**9] protected by the copyright. If the court chooses a low level (say, only the words the first author employed), then a copier may take the plot, exposition, and all other original material, even though these may be the most important ingredients of the first author’s contribution. As a practical matter this would mean that anyone could produce the work in a new medium without compensating the original author, despite the statute’s grant to the author of the privilege to make “derivative works”. If on the other hand the court should select a high level of abstraction, the first author may claim protection for whole genres of work (“the romantic novel” or, more modestly, any story involving doomed young lovers from warring clans, so that a copyright on Romeo and Juliet would cover West Side Story too). Even a less sweeping degree of abstraction creates a risk of giving copyright protection to “the idea” although the statute protects only “expression”. [...]
This all matters for fanfiction because it gives a good jumping-off point for the conversation about what a copyright includes. Can I copyright a character? A world? A species? What about my version of what I think Loki or the archangel Gabriel is like? This last quote gives us a good set of boundaries to work within.
“Many people, other than the authors, contribute to the making of a book, from the first person who had the bright idea of alphabetic writing through the inventor of movable type to the lumberjacks who felled the trees that were pulped for its printing. It is not customary to acknowledge the trees themselves, though their commitment is total.” —Forsyth and Rada, Machine Learning