Copyright law has always expressed an idea/expression dichotomy, where copyright protection extends not to an idea of a work but only to work’s expression of that idea. Alas, this distinction walks a fine line with regard to non-textual and visual works. In particular, courts are prone to inconsistent outcomes and a violation of the fundamental precepts of copyright law because courts often succumb to shortcomings in grasping aesthetic theories of originality, realism, and ideas idiosyncratic to visual works. However, this dilemma may be solved within the existing framework of copyright law. This note argues that the solution should start by focusing less on visual works’ subject matter, but rather elements of the work, such as the originality and realism of the expression that clarify the author’s creativity. Moreover, the concept of an “idea” should be defined broadly as the residual locus of uncopyrightable elements in a work, rather than a cohesive concept that attempts to definitively pin down the “idea” behind that individual work. Taking this two-pronged solution would thus both recognize visual and photographic work’s unique niche within copyright as well as align these forms of art with copyright’s law’s ultimate objective of authorship protection.
Un-Blurring Substantial Similarity: Aesthetic Judgments and Romantic Authorship in Music Copyright Law
Music copyright disputes have been in the limelight since long before George Harrison subconsciously ripped off the Chiffons. Yet, with copyright holders becoming ever more litigious, disputes over musical rights are revolving around increasingly narrow claims. While copyright law is meant to only protect the expression of an idea, rather than the idea itself, drawing the line is problematic and too often results in overly expansive definitions of “expression.” Lacking any objective definitions of the terms, determining when an idea becomes expression depends entirely on how one defines “art.” A recent case finding that pop-musicians Robin Thicke and Pharrell Williams infringed Marvin Gaye’s 1970s funk song, “Got to Give It Up,” by copying the amorphously defined “feel” and “sound” of the song, exemplifies the stifling affect our law is having on artists. After examining the evolution of the circuits’ current, and varied copyright infringement tests, this note ultimately suggests a unified and more precise approach that utilizes not only experts who are well-versed in the specific genres of art at issue, but also analytic dissection that carefully considers only protectable elements when determining if works are “substantially similar.”
This Note examines how rings fit into the copyright system as sculptural pieces not subject to the separability test under the useful articles doctrine. It focuses exclusive on rings, as they seemingly possess numerous functions; they have been used for mystical purposes, portable bank accounts, and as a signal of socially meaningful codes. Moreover, since jewelry designers consider functional features in the design process, should rings be treated as useful articles? After examining the purposes of the Copyright Act and conversing at length with designers, this Note concludes that rings are more of an art form. Although jewelry designers are limited by a finger’s constraints, they employ a great deal of artistic creativity in expressing a message though the details of a ring.
John Koegel, attorney and founder of the law firm The Koegel Group LLP, and Barton Beebe, John M. Desmarais Professor of Intellectual Property Law at NYU School of Law, discuss past and present trends in the application of IP law to the world of art and artists.