subscribe to this pageBerne Convention for the Protection of Literary and Artistic Work, first established in Berne Switzerland, 1886, is an international agreement between parties of the convention about copyright that provides an equalized system where artworks will be evaluated and given same protection term abroad or at home. The United States adopts the convention in 1989, with adoption of “Berne Convention Implementation Act of 1988." Article 2 of the convention focuses on setting lines to define “protected works.” Section 1 of the article defines types of works, both literary and artistic that can be protected under copyright. In regard to two dimensional art, the convention states, “cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches” are types of art to be protected under copyright. With just the adoption of section 1, just about everything created in shape of the above can be protected. Sections 2 and 4 gives ultimate power to the legislatives of each country to determine types of work to be protected and the translation of the guideline set in the convention. Section 3 goes on to say appropriated works will be “protected as original works without prejudice to the copyright in the original work,” and section 5, along the similar line, goes to declare that collection of intellectual or artistic works can be protected under copyright since its arrangement and selection requires artistic and intellectual genius. Section 7 further points to the power of each state to design and model their own copyright law in regards to applied and industrial art. In section 8, it declares news and press release are reported facts and do not qualify for copyright protection.
The convention is very important to the topic because it demonstrates a way of setting legislative standard to subjects of copyright with minimal use of aesthetic qualifications. Even thought it attempted to equalize the law in international scale, it was written broadly to allow interpretations by the each state—to set their own standards and qualifications in regard to protected works. While United States court relied on judging protection of two-dimensional artwork based on evaluating the work on aesthetic qualities, the Berne convention defines types of protected work without using words such as “original” and “minimum creativity.” By laying out technical and physical basis to judging protected work, it creates little confusion to society in defining what art is. But at the same time, the danger of such technical term is that its scope allow to many works to be protected, therefore possibly devaluing the worth of “art” in the society. Berne points out to the fact that perhaps aesthetic decisions are necessary to promote progress of art.
Bleinstein v. Donaldson Lithographic Company- 188 U.S. 239; 23 S. Ct. 298; 47 L. Ed. 460; 1903 U.S. LEXIS 1278
Bleinstein v. Donaldson faces the challenge and limitation faced and unanswered by broad definition of authorship in Burrow v. Sarony: What is the minimum originality and creativity required for a work to have copyright protection? The case centers on chromolithographic copies made of engravings of females in ballet costumes, bicycle tricks, and statuary originally used and designed for a circus poster. The circus company who circulated the design for their advertisement filed a copyright infringement suit against the lithographing company for making and distributing copies of their design, and asked for monetary compensation. The defense argued, and won in the circuit court decision, that under the statute, only “pictorial illustrations” and “work’s connected with fine arts” were to be granted copyright protections. The figures portrayed were not photographs and only pictorial replicas of the people that lack originality artworks and they were also immoral ones, as the females were drawn distastefully and crude to trigger excitement for potential customers, and therefore they only contained commercial value for the sole purpose of advertisement and minimal artistic value. Therefore, no copyright protection should be granted. However, Justice Holmes, in this crucial Supreme Court decision, demonstrates his concern over judges’ ability to evaluate art on its aesthetic merit and states that any work of real value, monetary or artistic, should be subjected to copyright—the fact in which this particular work was pirated adds value to the original work—and the court grants the plaintiff the exclusive copyright protection of the design.
Bleinstein v. Donaldson adds great support to my thesis. Unlike Burrow v. Sarony where the court jumped into defining authorship through judging art in its aesthetic qualities and original intention of the art, which is difficult to define or prove, the court admits to the difficulty as the judiciary to be evaluators of fine art. Instead, the court declares that any work of art that shows some value to the society—either in monetary sense, as in the circus advertisement, or in artistic contributions, as in works by Dahli—should be granted copyright protection. Through this decision, the artwork was no longer judged under constraints of morality or people’s perception of “high art.” Though this decision still left many questions, such as where do you draw the line for minimal originality/value to which court will grant copyright, the case is an example that court’s restraint in making aesthetic decisions helped broaden what society perceived as “art” and promoted creativity and progress through making high art more accessible for people.
Burrow-Giles Lithographic Company v. Sarony. 111 U.S. 53; 4 S. Ct. 279; 28 L. Ed. 349; 1884 U.S. LEXIS 1757
This landmark Supreme Court case rose about when Burrow-Giles lithographic company when Napoleon Sarony, a photographer of “Oscar Wilde No. 18,” sued the company for copyright infringement when it distributed lithographs of the photography without author’s consent and permission. The Company’s main argument was that photographs are products of a mechanical process, and is therefore not an art, and are not protected under article I, section 8, clause 8 of the United States Constitution—photographs are not produced under authorship as other means of art, such as writing and painting, are. Supreme Court concludes that Congress has the constitutional power to extend copyright protection to new emerging medium of expression, such as photography that represent “original intellectual conceptions” and “ his own genius and intellect.” The Court first argued that since Sarony included “Copyright, 1882, by N. Sarony,” at the corner of his photograph, it gave sufficient notice to the public of his exclusive right to the work. Secondly, although the Constitution does not include photographs under works of authorship in which are protected under copyright, it is only because the technology, when the statute was written in 1790, was not in existence. Providing the evidence that charts and maps were included under protection in Copyright Act of 1790, the court concludes that since photographs are a medium in which “idea of mind given a visible expression,” they also qualify under copyright protection under the constitution. Court goes further on, stating no ordinary photography of which “transferring to the plate the visible representation of some existing object” will not be given a copyright. Only photographs that are “useful, new, harmonious, characteristic, and graceful…entirely from his own original mental conception” and in effectively doing so—showcasing enough expression and originality to be granted such a protection. With this case, Supreme Court demonstrated a great activism in promoting and introducing new medium of expression to the culture. However, the last clause to the court’s argument, that a photograph must express sufficient originality according to court’s standard to be considered an art, creates a very subjective and aesthetic basis to which future photographic art/and recreations of the medium are to be judged. Words that were used by Justice Miller to describe an original photography are words conceptualized with different meanings according to every person’s mind and artistic taste. Law should be a concrete rule which should be understood and interpreted, to an extent, on a same level, and the aesthetics required by the court’s decision set minimal base to which people can agree on. This was the first real case in which the court’s decision in granting the copyright based entirely upon a subjective and aesthetic decision. I will argue the loosely set standards in the decision created inconsistency and unpredictability in future cases and did little to mold society a clear conception of photography as art.
ETS-HOKIN v. SKYY, a decision centering on photographs of Skyy vodka used for advertisement, raises key factors in judging copyrightability of the work. First, is the photograph an original, or a derivative artwork? Secondly, which originality requirement should be applied? The difference in the answer to part one cost a photograph a copyright protection.
The case was brought to motion when Ets-Hopkin, who was hired by Skyy to photograph the vodka bottle for their advertisement campaigned, sued the company for copyright infringement when the Skyy Inc. used his image in various advertisements under limited license without his consent. Also, he argued that other photographers who photographed the vodka for the campaign had copied his photos, virtually producing identical images. The company argued in defense that the plaintiff’s photograph is not subject to copyright protection, since the work is a derivative work of Skyy’s signature vodka bottle itself. The district court has concluded that the photography was in fact a derivative work, since Skyy vodka bottle, from the color, font, to the label, is a “pre-existing work.” Since the photograph was a derivative work, the “substantial originality” clause was used to evaluate copyrightability of the photo. The court ruled that photos were “insufficiently original” and denied photos’ copyright protection.
However, the Court of Appeals concluded differently. The court declared Ets-Hopkin’s photos original work of art. The argument to consider vodka bottle as a work of art, was not subject to copyright because the bottle was driven mainly by function, and could not be protected by copyright law as a result. The court recognized that the label might have been protected by copyright, but it was ruled to be incidental part of the photograph, not a substantial part. Since the first work of art, especially photography, only require “minimal amount of originality” by the Copyright Act, the court stated that the photography demonstrated sufficient creativity and granted the photograph copyright protection, but the issue of infringement was not settled in the case.
This case is a fascinating study of how one subjective of thought, in this case in what the court believes to a derivative work, can influence so far as being the key determining factor in granting copyright protection for a work. Especially by the weight of value that comes from copyright monopoly, there is a need for a more rigid standard to match the gravity of power granted by copyright law.
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)
The Supreme Court case, Feist Publications, Inc, v. Rural Telephone Service shows two arguments on issues of copyrighting facts. The case emerged when Feist Publication included numbers from Rural Telephone Service to be included in their own telephone book when Rural refused to share the information, and Rural sued for copyright infringement. The two main arguments are presented: one states that fact alone cannot be copyrighted, but compilations of facts can be considered an artistic input; therefore, the expression of fact in a "collection of words" can be copyrighted. However, the compilation of facts require a minimum degree of originality, and since copyright law only applies to creative aspects of the two dimensional work, a list of A-Z phonebook does not satisfy enough creativity or artistic merit to be qualified for copyright protection.
The Court ruled that Rural's listings did not meet the standards for “minimum creativity” and that the use of the listings did not constitute infringement. This decision emphasizes that copyright only extends protection to originality, not the amount of effort put into the creation of an artwork.
This recent case showcases a judicial activism in which the court uses aesthetic qualities to judge whether this particular compilation of facts, via phonebook, is under copyright protection. However, this decision complicates my argument greatly. Under Bleistein v. Donaldson, any artwork of a value should be granted copyright. Looking at the monetary value that the phonebook contains, the copyright should be granted, however its evidently low artistic value disqualifies the work of any copyright infringement. What is the minimum balance of artistic/tangible value that would grant a two dimensional artwork a copyright protection? Also, the case brings up demonstration of minimal originality as part of the qualification. The court only so far answers the question by saying that listing of facts is not providing enough creativity. Where does the line lie for minimal creativity? Aesthetic determination of the work seemed crucial in this case, for if the copyright was granted, the value of art in current society will diminish because creation of artwork has become so effortless and widespread, but perhaps it was because no clear quantitative standard to judging “minimum originality” was set by the legislature or the judiciary. The case weighs in on the necessity of aesthetic decision to promote progress, but also demonstrates that while aesthetic decision is good for case-by-case studies, it shows that lack of quantitative standards created inconsistency in what society has perceived as norms and requirements for a copyright protection over time.
Goldstein argues and defines copyright in respect to one issue only: authorship. Authorship implies about the author and the audience, and copyright serves as a “vehicle” for authors to reach out to its audience and for the audience to reward author for his effort. He pushes that the purpose of copyright thought and interpreted in this view provides grounds to reforming copyright. Three points are raised.
First is that “copyright law must protect authors from other influence other than their audience.” Many argue that the copyright is neither about authors nor authorship, but about the commerce and the publisher’s role involved, for they determine what is made available to the public. However, Goldstein argues that ultimately publisher’s power(and the transaction costs involved) goes so far in their choices, and it’s the consumers who make the decision of what to buy; therefore, the market is consumer-driven. He also addresses the dilemma of copyright: too much monopoly will produce no work, but too little of monopoly will wither the information, but concludes that after ultimately looking at both extremes, the ending result in the artworks flourished has been the same. As long as copyright law provides a market that is consumer-driven and transaction costs do not overwhelm authors’ market.
Secondly, he argues that copyright law “must not judge authors’ efforts by too exacting a standard.” Goldstein favors the way US Copyright courts have shifted the direction of copyright law not on protecting just utilitarian products, but more so on works of “creative authorship.” He favors court’s strict compass of infringement protection of utilitarian products, but while having wide and generous scope in judging artistic works. However, he recognizes the need to have a way of granting different degree of copyright protection for different works and criticizes that utilitarian product should not enjoy same copyright protection as those of “creative authorship.” Goldstein argues that since Fiest creativity has been built into the requirement of copyright law, sui generis law, is a living thing.
Lastly, he argues that “it must not impose too severe a prohibition against author’s borrowing from others.” Goldstein sees Berne’s Convention as the ideal model of promoting authorship and works to remove barriers between the author and the audience. As a Berne member, the goal of US and the members is to promote this line of copyright law across the globe. While recognizing the under developed countries’ immediate economic dependency on piracy, it should help other countries in adopting Berne’s Convention of Copyright.
The paper underlies the assumption that the main issue of copyright is authorship, which is the area where most of the aesthetic determination of the courts is made. He presents the other point of view, which he favors the room in copyright law to make aesthetic and artistic determinations with the change of time. However, he also sees that in some areas, more structure is needed, especially in having different copyright protection terms for different types of art.