Understahl, Jennifer.  "Copyright Infringement and Poetry: When is a Red Wheelbarrow the Red Wheelbarrow?"  Vanderbilt Law Review
        58.3 (2005): 915-54.

        Understahl observes that courts apply a substantial similarity test when determining whether a particular work of literature infringes existing copyright.  She argues that courts fail to take into account the difference between different literary genres, and subsequently that different genres call for varying thresholds of originality.  Moreover, courts lack a clear standard for establishing substantial similarity, disagreeing on the application of the "pattern" and "total concept and feel" tests, as well as on whether the burden of recognizable infringement should fall to the "lay observer" or to an "intended audience."  The various expressive works encompassed by the umbrella term "literature" thus merit the formulation of individual standards for establishing substantial similarity.  For instance, literature often features phrases in which the sound complements the sense.  The sounds created by juxtaposing certain words can carry significance, as when a phrase describing Satan contains an abundance of sibilants, evoking the hiss of the serpent frequently employed to depict Satan in illustrations.  If the same phrase occurs in an op-ed column about a celebrity, the context largely determines that readers will attend to the sense, and assume that effects of sound are incidental. 

        In essence, Understahl argues that the idea/expression dichotomy collapses in the case of literary.  Adopting Pound's dictum that poetry is "the most concentrated form of verbal expression, she suggests that poetry warrants the lowest minimal standard for originality.  Typographical decisions, most notably features like the placement of the poem on the page, line length, enjambment, spacing, and strophic organization, all create substantial dissimilarities between copyrighted text and "new" writing, when justified as integral to that which the poem is designed to express.  Moreover, poems that borrow language from this "new" writing but cast the language in a new form ought to be determined original.  The substantial similarity test, Understahl argues, would even fail to find William Carlos Williams' "The Red Wheelbarrow" copyrightable.  She proposes an "expressive elements" test that evaluates the relation between form and content on a sliding scale of substantial similarity, one that accounts for the features that characterize poetic expression.  The projected benefits are greater consistency in substantial similarity determinations and less overprotection.  Moore's poetry would benefit from the adoption of this test, given the prevalence of sampling and quotation.  Understahl draws on a surprisingly wide range of poets to substantiate her remarks about poetry as an art form, demonstrating the viability of the proposed test within the artistic community under consideration.  Because she mentions no cases in which the court slighted poetic originality, the issues seem prospective, if no less important.

Raustiala, Kal and Sprigman, Chris "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04. http://ssrn.com/abstract=878401

This detailed article is an in depth view of both sides of the fashion copyright debate. Rather than simply looking at and supporting only one viewpoint on this controversial issue, the authors address both angles to the fashion copyright controversy. They then proceed to prove why support of low IP protection is the better choice despite arguments made in support of fashion copyright laws. This article describes the fashion industry as unique since it continually produces original content while its main creative element remains outside of copyright protection. This appears to condradict the theory of IP rights which claims that copying, which is rampant in the fashion industry, smothers the incentive for innovation. The article then presents the reader with the two overarching arguments. The argument for increased copyright protection within the fashion industry is more of a moral rights claim. This side claims the lack of current fashion design protection is an injustice to the immense creativity put into the creation of apparel. The other side looks at the unique nature of the fashion industry. They claim copying drives the cycle that makes fashion such a thriving, innovative industry. The article then proceeds to delve into past attempts at copyright protection for fashion. One failed attempt was made by the Fashion Originators' Guild of America: they made a deal between designers and retailers to refuse the sale of any copied apparel and boycotted any member of the guild who violated this rule. Since clothing and apparel are considered utilitarian objects, copyright should not apply to fashion design. Patents and trade dress also are not effective methods of protecting copyright. Although trademark is used by designers, it can only be used to protect names and logos, not entire designs. Therefore, bills like HR 5055 are suggested by groups like the CFDA. One of the main concepts of this paper is how induced obsolescene and the positional nature of apparel drive the fashion cycle, which would be incredibly slow and ineffective without copying. In addition, Raustiala and Sprigman explain how free appropriation helps to anchor trends in the industry. So, they conclude that due to induced obsolescene and anchoring of trends, the fashion industry has remained stable despite rampant copying. Finally, the authors address the copyright system in the European Union and how even with protection laws, very few design infringment cases come to court. Additionally, due to the litigious culture of the United States, copyright protection in the US would simply flood the courts with unnecessary cases and reduce innovation due to fear of suit.

This article is of extreme importance to any research regarding the issue of fashion copyright. The article is unique among other scholarly works on this issue in that rather than just delving into one side of the debate, the authors address the arguments on both sides of this fashion copyright war. This is an extremely useful method and structure since it provides the reader with insight into both arguments. However, the article is then strengthened by analyses of both arguments and subsequent counterarguments against those supporting fashion copyright. Since my topic revolves around whether fashion copyright should be enacted or not, having both argments laid out within one coherent paper is extremely beneficial. The paper also looks at previous attempts at fashion copyright. This is important in building the history and basis of design protection in my paper and why these laws should not be enacted in the present day. This article is very important in building the foundation of my argument.

This is the actual case in which Viacom filed an amended complaint, seeking punitive damages in addition to the statuory damages originally requested in the March 13, 2007 case.

In reference to my project, this provides an update to the ongoing case of Viacom v. Youtube. The request to amend for additional damages was denied. It was ordered that punitive damages could not be recovered in accordance with the Copyright Act.

Viacom Inernational Inc.v. YouTube, Inc. No. 95-02103. Southern District of New York District Ct. of the US. 7 March 2008.

Intellectual property is an essential element of innovation. In order for innovative businesses to introduce intellectual property into the global market, strategic management and protective policies are necessary. The book looks at the dynamics and challenges of managing intellectual property.  The book details effective strategies for balancing intellectual property innovation and marketing in the public domain, with effective acquisition and protection of ownership rights.  The book is comprehensive, advancing from the history of these issues from a global perspective to future challenges that face pioneering global business models.

As it pertains to my project, the book describes Google as a visionary company that, despite the legal accusations against the business giant, may have success in reshaping the future of copyright law (135).

Gollin, Michael A. Driving Innovation: Intellectual Property Strategies for a Dynamic World . New York: Cambridge University Press, 2008

The rights to intellectual property and the revenue thereof can make or break an entrepreneurial business.  This book covers the gambit of trade secrets that tech-savvy entrepreneurs may need to protect intellectual property in the dynamic arena of copyright law, licensing, patenting, and trademark acquisition.  The book makes examples of the infringement issues faced by international business icons such as Microsoft and Amazon.com.

As it pertains to my project, the book also goes over the provisions for statutory versus actual damages in the 1976 Copyright Act (115).  These provisions are under review in the Viacom v. YouTube case.

Guide, Gilbert. The Entrepreneur's Guide to Patents, Copyrights, Trademarks, Trade Secrets & Licensing . New York: The Berkley Publishing Group, 2004

Intellectual property is taking on new forms in the digital media market. Consumers are exploring their creative license through the use of multimedia service providers in unprecidented ways. This surge of consumer digital media use is also bringing to a head new conflicts between intellectual property rights Creative Commons, and Digital Rights Management. This book explores this phenomenon and the various ways in which major digital media service providers are being effected by this rapidly changing market environment. Overviews of the business performance, legal goings on, and multimedia services of such industry icons as Google, Inc., Metro-Goldwyn-Mayer, Sony BMG, Napster and more are discussed.

In reference to my project, the book looks at precident intellectual property cases and gives insights into how the concepts within the 1976 Copyright Act are applicable to the cases. The author also notes that Google has aside $200 million in escrow to deal with inevitable litigation, lists the various number of litigations involving YouTube, and notes that these cases will set important precedents for future review of copyright law as it pertains to Internet videos (253).

Rimmer, Matthew. Digital Copyright and the Consumer Revolution: Hands Off My Ipod. Massachusetts: Edward Elgar Publishing, Inc., 2007

The development of internet communities, the phenomenon of file-sharing, chat room hosting, and surfing are all aspects of cyberspace social behaviors that have coalesced to create a thriving social organism, or ecology.  In the book, Huberman makes a scientific observation of this phenomenon as statistically goverened patterns. While discussing the application of such physics concepts as Brownian motion and Zipf's Law, Huberman researches the mechanics of internet social behaviors, and the value of such findings to the future development of internet busines models and application architecture.

In relation to my project, and the accusations from Viacom, YouTube is being accused of actually inducing illegal behavior.  Huberman looks at various problematic features of file-sharing networks, and their contribution to the dilemma of creating user-friendly file-sharing functions at the risk of creating illegally replicated material (69).

Huberman, Bernardo A. The Laws of the Web: Patterns in the Ecology of Information . Massachusetts: MIT Press, 2001

This book goes over the trends in multimedia that are pushing multimedia services into unprecidented technological formats. There is an in-depth analysis of the multimedia security technologies applied to digital data as prevention of copyright abuse or violation. These various copyright protection techniques inlude digital watermarking, steganography, fingerprinting and data hiding among others.

For the purpose of my project, the book discusses how the ease of communication of digital data is making it a globally accessible commodity. This is why positive internet video sharing service and televisions industry partnerships are being fostered. There is a growing demographic of interenet file-sharing service users who can be reached with multimedia entertainment. The future of these internet hosting / television industry busines partnerships is being forged out of the new technologies in digital data sharing.

Also of interest for my project is that the book also addresses the matter at the root of the uneasiness and friction between multimedia industries like the television companies and the internet video-sharing environment in general. That problem is arising from the polarized interests of intellectual rights owners and interntet end-users seeking free access to information.--"...The development of digital technologies permitting transmission of digital data over the internet has raised questions about how these rights apply in the new environment.  How can digital intellectual property be made publicly available while guaranteeing ownership of the intellectual rights by the rights-holder and free access to information by the user?" (3).

• Lu,Chun-Shien. Multimedia Security: Steganography and Digital Watermarking Techniques for Protection of Intellectual Property. Hersey: Idea Group Inc., 2005

Book pages 223 through 228.

Copyrights for Laurel and Hardy films are owned by Hal Roach Studios for which Michael Agee is the chairman.  Despite directly benefiting from the Copyright Term Extension Act (CTEA), Agee opposes the legislation.  Even though Roach sells thousands of DVDs and video cassettes of these films, few of what they own still has any commercial value.  The works sit in a vault, and even though what doesn't presently have value could be deemed valuable by the owners of the vault, the commercial benefits from the works must surpass the costs of making the work available for distribution in order for this to happen.

We cannot know the benefits described above, but we can know the costs.  Today, film restoration, which used to cost thousands of dollars, can be done for hundreds.  This leaves most costs to the hiring of lawyers, who are presently necessary in order to find and secure rights from the many copyright owners of a film.  Thus the process of restoration for the preservation of film is time consuming and costly, and unfortunately it can be argued that the benefits do not outweigh the costs.  Therefore we wait until the copyrights expire to restore them, but because these old films were produced on nitrate-based stock, by the time the term expires, the stock will have dissolved and there will be nothing left to restore.

This death of old film and creative works is the death of future works.  Even is someone chooses to wait until the end of a copyright term to create a derivative work, the original work from which the person wishes to derive will no longer physically exist, making the creation of the derivative work quite difficult.  Today we have digital copies of work with a much longer lifespan; however, if big media companies continue to push for term extensions such as the CTEA, works may never pass into the public domain and new works with potentially high commercial value as well as creativity will never be produced.

Also referred to as the Sonny Bono Copyright Term Extension Act or disapprovingly as the Mickey Mouse Protection Act, the Copyright Term Extension Act of 1998 extended copyright terms in the United States by twenty years.  Previously, copyright lasted the life of the author plus fifty years, or seventy-five years for a work of corporate authorship; this act extended copyright to the life of the author plus seventy years and ninety-five years, respectively.  Basically, this act halted the advancement of the public domain.

Supported by big media companies like Disney (ironically, considering many of Disney's famous and timeless creations are borrowed ideas) and by self-concerned artists' widows like Mary Bono, the proposal for this legislation hit the floor with a bang.  At one point during debate Bono stated that Congress should consider the MPAA's Jack Valenti's proposal of a copyright term of "forever less one day."  After supporting arguments such as the increasing length of human life expectancy and the negative global effects on the entertainment industry of differences between American and European copyright terms, Congress passed the legislation with a 105 to 298 vote.

However, as opponents of the act argue, this act is unconstitutional because such an act is not "necessary and proper" in accomplishing the Constitution's stated purpose of "promot[ing] the progress of science and the useful arts."  In addition, a strong case can be made that under perpetual copyright, some works would not be created that would have been under limited-time copyright.  This is due to the fact that few creators of distantly derivatives works have the money and resources necessary to seek out the original work's copyright owner or to purchase a license, and often enough original owners might even refuse a license.  Thus it is made clear that a rich and constantly replenished public domain is necessary for the continuation of artistic creation.

The Digital Millennium Copyright Act, passed in 1998 under the Clinton administration, was an attempt by congress to address new and emerging technological advances that threatened copyrighted material. Congress, deciding that the Nation's copyright laws were becoming antiquated and often usless, decided to advance a project to move these areas of legislation into the digital age. The DMCA put a ban on any implement (both physical instrument and software) whose intended function was the circumvention of copyright safeguards. This legislation targeted devices such as VCRs, which were required to include copy prevention built-in, but focused even more on burgeoning internet technology such as peer-to-peer clients. DMCA Title II, for example, provides safe harbor to Internet Service Providers that comply and adhere to copyright guidelines, and agree to block the access of users who are shown to be committing copyright infringement. 

As much as this legislation tries to protect works from being copyrighted in this new technological age, it is simultaneously hurting independent creators from distributing their content through one of the few networks they have left.  Because copyright law has grown so much over the century, artists without fiscal resources to clear the ever expanding copyrights would often simply not create at all, or choose not to distribute their creations for fear of consequential lawsuits.  But with the invention of the internet, authors and artists suddenly have a new way to get their work out to the public.  The internet is a world-wide market where anyone can post and make available virtually anything.  However, the DMCA is limiting the potential use of this valuable and incredible resource by allowing and facilitating the searching and taking down of every small bit of copyright infringement.  If things continue in this direction, creativity and innovation will have no market or means of distribution.

Sometimes the issue is a little bit more complicated (although this is in no way simple) than obtaining permission from a copyright owner to use his or her work.  Sometimes, the copyright owner cannot be located, and a whole new slew of questions arise.  Does one use the work and take the risk of violating the law and possibly being sued, or does one refrain from using the best suited work and compensate with another less fitting work legally?  These questions and the reasons for why they are too often being asked are the topic of this essay.

Recent changes in copyright law, three in particular, are the main culprit.  They are automatic copyright protection, copyright renewals, and increased duration of copyright.  Under previous U.S. copyright law, authors had to register their material in order to receive copyright protection.  Today, anything that is created automatically is protected, and therefore many people don't bother registering their works, making it extremely difficult to track down the owner.  In addition, copyright today doesn't need to be renewed because the duration of current copyrights is already significantly and outrageously long.  This may make things easier for copyright owners who do not need to file paperwork, yet it makes things much more difficult for those trying to locate an owner because less paperwork is available to be searched through.

These issues prove to be daunting and intimidating to a person wanting to utilize something from a copyrighted work in their own creation.  An independent or documentary filmmaker, for example, might have to restrain from using something that he or she feels best enhances the work because of an inability to locate the copyright owner of the work wanting to be borrowed.  This is an obvious damper on creativity and significantly lowers the quality of future works.  If gaining permission to use a copyrighted work is hard enough, imagine gaining permission from a person that doesn't even exist.

This landmark case deals with the concepts of digital sampling and fair use.  Video Pipeline, a video promotion company, created trailers of home videos to be shown in stores.  These videos, intended to benefit the store's sales, were shown in the store and consisted of film clips acquired from the film distributors.  Video Pipeline continued this practice until 1997 when it considered the internet as a bigger, better, and more efficient way of distributing these previews.  It viewed its idea as a sort of sampling; much like a person can often sample a few pages of a book in a bookstore before buying it, they wanted to make short clips of movies available for preview before purchase.

After a few years of this distribution, Disney told Video Pipeline to stop.  However, Video Pipeline thought it was within their rights of fair use to distribute these clips and thus filed a lawsuit asking the court to declare that these rights were in fact theirs.  Disney countersued for $100 million in damages.  The court ruled in favor of the defendant, Disney, and claimed that because the trailers were compiled of exact clips, they were derivative works illegal under the law.  In addition, the Plaintiff was ruled as violating performance and public display laws.  Last but definitely not least, the court ruled that the trailers did not fall under the argument of fair use for lack of adherence to the factors of fair use, which are as follows: (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 for the copyrighted work.

This once again justifies the fear of filmmakers to borrow from copyrighted material, despite possible claims of fair use, because as is exemplified here, even a small borrowing of a film clip can cost millions.

Once a work has entered the public domain, the original owner no longer has rights over it.  This clause of copyright law has proven challenging as past copyright holders have attempted to reclaim their rights when it becomes suddenly convenient.  This is the subject of the U.S. Supreme Court case Dastar Corp. v. Twentieth Century Fox Film Corp.

In 1948, Fox obtained rights to create a television series called Crusade in Europe based on a book written by Eisenhower and published by Doubleday.  Doubleday renewed the copyright to the book in 1975; however, Fox chose not to renew their copyright on the series, which thus entered public domain in 1977.  Dastar then took the series in 1995, edited and manipulated them, and repackaged them.  They sold the new videos and credited Dastar employees as producers and not the original book or TV series.

Fox sued in 1998, attesting that Dastar had infringed on copyright and had "passed off" the work as their own.  The district court found for Fox and awarded it double Dalstar's profits.  Finally, the U.S. Supreme Court reversed the decision of the district court and another appeals court.  In an 8-0 ruling, the court reasoned that once a work passes into the public domain, anyone in the public may do anything he or she wishes with it and does not have to attribute the author.

This court ruling helps promote creativity somewhat by assuring artists that anything in the public domain is fair game for their use in future works.  However, there is still the fear that someone might try to claim rights, and often the potential battle isn't worth it.  In addition, copyrights today, thanks to extensions, are so long that producers and publishers don't need to renew copyrights because they last well over the death of the author.  Once again, the copyright monster scares small companies from creating for fear of infringement.

In the world of copyright law, there is currently a major debate over whether or not the already granted extensions of copyrights are beneficial or detrimental to the creative process, and whether or not these extensions should continue to be made.  Up to this point, lawyers have successfully defended copyright extensions as being "good for the arts" by preventing "dilutions" of artists' works.  However, as Lawrence Lessig comments in the article, "[The media companies] have used their power to protect themselves against innovation, which is exactly what the copyright was originally set up to guard against."

If it weren't for the ability to borrow and manipulate, half of Disney's iconic figures that we as a society hold so close to our hearts, such as Mickey Mouse and Snow White, would never have existed.  And the direction in which copyright is presently going could prevent the creation of future icons.  As Lessig makes point of, artists should be compensated for their works, but such ridiculously long extensions of copyright are only hurting society.  If these extensions had existed a hundred years ago, Disney would never have been able to create Steamboat Willie from Buster Keaton's Steamboat Bill Jr., nor would we ever have been able to enjoy Snow White or Cinderella, both clearly borrowed from the stories and tales of the Borthers Grimm.

This article clearly relates to the argument that copyright can and is hurting creativity.  As it was originally intended, copyright was enacted to protect the creative process, not diminish it.  However, its direction today is butchering creativity.  Just because something is borrowed from an older work to create a new one doesn't mean that the creator of the new work doesn't have any original ideas of his own incorporated into the work.  Thus, Lessig and colleague Eric Eldred are fighting to take back the public domain and reconvert it into a lawyer-free zone.  In Lessig's words, he's trying to "Free Mickey."

Book pages 184 through 199.

In these two sections, Lessig argues that copyright laws constrain people from creating and innovating.  By mentioning and discussing the conceptions of all different types of artists, including painters, film makers, and musical artists, Lessig shows how the laws originally meant to protect these authors are now hurting them by constricting their abilities.  As Lessig states towards the end of this section of his book, "If innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant innovation and much less creativity."

The argument of fair use of course comes up in these sections, but Lessig puts it this time in a different and interesting way, claiming that "fair use in America simply means the right to hire a lawyer to defend your right to create."  It's all about money and the market, and those who don't have the former can't hope to have their works distributed in the latter.  One simple infringement such as illegally downloading a song could cost a person millions of dollars in this country; however, a doctor, thanks to malpractice insurance, cannot be liable for more than $250,000, regardless of the damage to his patient.

Lessig also makes particular note of the internet and how it has increased the quantity of work out there and the speed and efficiency with which it can be shared.  Unfortunately, this should-be miracle is not utilized to its full potential because those creators and innovators that cannot afford to clear copyrights are too scared to make their work available on the internet for fear that it might be seen by someone who could sue them.  

This money driven, lawyer infested problem is stunting our culture and preventing our growth and expansion because no one wants to risk their life to put something creative and new out there.  And when the possible repercussions of taking such a risk include losing millions of dollars and consequently a livelihood, creativity and innovation suddenly begin to dwindle.

This source solidly supports my argument that copyright law is killing creativity rather than doing what it's meant to and protecting it.  It directly relates to my thesis and contributes to my claim.

Book pages 95 through 107.

In consecutive chapters of Lessig's book, the making of two documentaries is described. In both of these instances, the filmmakers had problems clearing copyrights and struggled with the concept of fair use. These examples clearly demonstrate the difficulties encountered by independent filmmakers with regards to production and distribution of copyrighted material, as well as amplify the restrain that excessive copyright puts on the creativity of the filmmaker. The chapters tie in the role of independent films in the "copyright kills creativity" argument.

Chapter seven illustrates the plights of Jon Else who, when working on a documentary about the stagehands at the San Francisco Opera, encountered a copyright issue. In the background of a shot of the stagehands was a television on which was playing an episode of The Simpsons. Despite the fact that the clip was merely four-and-a-half seconds and clearly fair use, Else still thought it smart to clear the copyrights. He contacted Matt Groening, who referred him to Gracie Films, who referred him to Fox, who demanded ten thousand dollars for the licensing fee. This sum of money was not something Else could afford, and he therefore ended up digitally replacing the clip which he felt was valuable to the effect of the scene.

In the proceeding chapter, the story of Alex Alben, a lawyer for Starwave, Inc. is told. Alben wanted to create a project using the new technology of CD-ROM to showcase the career of Clint Eastwood through interviews, posters, script, and film clips. The problem arose when it came to clearing the rights of each and every person involved in the making of each individual film clip, including actors, directors, and composers. Alben needed to compensate each person, which took an entire year given his vast fiscal resources. The amount of time it would have taken the average person is unimaginable, that is if they could even do it.

As these two examples show, the monetary means as well as the time necessary to create such products are inaccessible to the average person, thus killing the output of creative material.

In this article, David G. Post comments on Lawrence Lessig's Free Culture and his statements concerning copyright and creativity.  As is pointed out, copyright's original intention was to safeguard creativity by assuring creators that their works would be protected from replication.  It made a creator the owner of his or her creation and gave him or her complete control over what would be done with the work.  The assurance that this copyright provides in a way gives authors an incentive to create.

With regards to the other argument concerning creativity and copyright, the one in which it is claimed that copyright limits creativity, Lessig states that copyright law has, until now, for the most part "steer[ed] a middle course" and remained balanced by protecting the rights of today's creators and simultaneously limiting these rights so that the next generation is free to borrow what they want from the previous.  However, Post tells of what is currently happening and states that copyright has "swollen to gargantuan proportions" and no longer resembles, not even closely, what it originally was.

Lessig's contention for why copyright is killing creativity is that power is now concentrated in the few hands of the big media companies.  Post does not agree with this for lack of evidence and denies Lessig's substantiation of a few anecdotes.  However, with reference to film, this claim is not far from true.  Film production companies are now few in number, and even those that we believe are small indie companies are in fact owned by Fox 20^th Century, Miramax, Paramount, or MGM.  Even those movies that we believe are far from being under the influence of big media are in reality being dictated by the same big names and the same big money that your average major Hollywood production is.

In the end, whether Post agrees with this claim of Lessig's or not, he praises the author's attempts and goes as far as to say that one beginning to study copyright could "do much worse than to start with Lessig's book."