Intellectual Property Law and Literary Rewrites

Introduction

In intellectual property law, copyright is one of most discussed areas in industries where it applies. The industries that mainly use the laws are mainly the software industry and the entertainment industry. Piracy in the entertainment industry has ensured that the industry remains conservative on the copyright culture. The software industry on the other hand has pushed for sharing of knowledge with less attention being given to copyright laws. 1 Copyright laws apply in the normal daily activities of the common person with most of the individuals being unable to recognise any infringement of laws. In literature, some authors have been accused of re-writing the works of other authors. This act is referred to as literary re-writes. The copyright laws allow for some of the copyrighted materials to be used without permission where writers make a limited use of the copyrighted material or to a limited extent in their works. Some of the uses that this case may be put into include education, research, commentary, and reporting of news.2 This particular clause is commonly referred to as ‘fair dealing’ though the US calls it ‘Fair use.’ Australia is one of the countries without the fair use exception. However, it applies different forms of exceptions in its copyright act within ss 41 and 103 AA.

As a definition, fair dealing is a concept applied in many commonwealth countries to refer to the exceptions and limitations made to the exclusive right that copyright laws grant to a writer.3 The Copyright, Designs, and Patents Act 1988 (CDPA) in the United Kingdom limits fair dealing to the following purposes: “private study and research (non-commercial), review, criticism, and news reporting” (sections 29, 30, 178). In this country, “incidental inclusion of a copyrighted work in an artistic work, film, sound recording, broadcast, or cable programme does not infringe copyright in any way”4 though they are not actually defined as a fair dealing.5 This essay focuses on literary rewrites and fair use and/or fair dealing by explaining the concepts as components of copyright law.

Discussion

In Australia, the Copyright Act 1968 (Cth) allows people to use copyright material without the copyright owner’s permission in certain situations.6 Copyright reserves most of the rights to the owner of the works of art. Exceptions are made for uses that are not included in the copyright. As in the UK, this use of copyrighted material in replicating ones work is limited to some situations including research professional advice by a lawyer, patent attorney, or trademarks attorney.7 Some of the industries where copyright applies include architecture and design where the law has had some of the most significant effects.8 The copyright act also engages other members of the society such as students through its Part VB by regulating the educational contents in the respective universities available to students.9 With the current advances in the internet use and the World Wide Web, information sharing is faster and accurate. However, copyright laws have sought to prevent rewriting or duplication of works of art without protection over the web.10

Examples of cases where authors re-wrote other writers works include Jean Rhys’ Wide Sargasso Sea, which is a literary prequel to Jane Eyre. Another example is Peter Carey who wrote Jack Maggs who retold Charles Dickens’ story of Magwitch from Great Expectations. Another case that is significant in this discussion is that of Alice Randall, a novelist in the US who re-wrote the story of Margaret Mitchell ‘Gone with the Wind’ (GWTW) from a slave’s perspective.11 Randall ‘wrote back’ to GWTW with a novel that exposed the racism of Mitchell’s earlier work The Wind Done Gone (TWDG). As a result, Mitchell’s estate sued Randall’s publisher.12 Transformative fair use was the initial judgement though Mitchell’s estate did not succeed in getting an injunction. One of the cases where a writer sued another and managed to get the US Federal Court of Appeal for the Second Circuit to make a ruling of non-transformative fair use is that of Frederick and Salinger. In this case, Frederick Colting wrote a sequel to JD Salinger’s Catcher in the Rye in his novel 60 Years Later (60YL).13 Colting engineered an imaginary meeting between Holden Caulfield and JD Salinger in 60YL. The novel was a reflection on fame, reclusiveness, and youth.14 Salinger however sued for copyright infringement thus managing to get the court to make a ruling of infringement of the copyright.

The US copyright Act allows for fair use as an exception under section 107 in the act. A four-factor approach is used to decide when a writer or an artist may use the copyrighted work of another writer without infringement of the copyright. Parody is one of the categories of fair use. Transformative use is another fair use consideration that has not yet become a concept in the Australian law within ss 41 and 103 AA. One of incidents where they have been applied is the case of the 2-Live Crew’s use of Roy Orbison’s song.15 In this particular case, “the Supreme Court of the United States found that 2-Live Crew’s use of Roy Orbison’s song was a transformative fair use parody. The Supreme Court made this decision because 2-Live Crew’s version of Orbison’s song radically changed the original thus poking fun at it”.16

When an artist uses the works of another writer and claims the work to be original, terms of copyright apply. The writer has the right to sue the colleague for infringement. As one of the commonwealth countries, Australia does not have the fair use doctrine as it exists in the USA. In this country, the borrowing of ideas and copying from people’s work are described as a necessity, as they help make points.17 Though there is little evidence of a difference between parodies and satire, the fair use doctrine in the USA has made a clear distinction between the two with Australia being left behind. This serves as an example of countries with conflicting policies on copyright laws.18 The difference between satire and parody is also highlighted in Souter’s Campbell where he states, “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”19

The above definition enables the making of distinction on when to apply fair use on a novel and a parody especially in the United States’ copyright law. The example of its application is in Randall’s novel TWDG that was protected as fair use by the Eleventh Circuit.20 The Supreme Court in the country found fair use to be a safety valve maintaining the balance between the first amendment and the copyright law in Harper & Row.21 The other case by the same court is Eldred v Ashcroft22 that deals with a related case.

The first amendment in the US protects the freedom of speech and expression. It is linked to fair use in the copyright law as stated in the American jurisprudence such as Dr Seuss stating, “Parody is regarded as a form of social and literary criticism having a socially significant value as free speech under the First Amendment.”23 This was used in the case of Randell as discussed above to find the novel as a use of the fair use parody.24 In order to look at the use of fair use in the copyright laws, it is important to consider some of the cases mentioned above in a bid to make conclusions based on the procedures and applications of the exception in the copyright law. In this case, an example of an application is in Sun Trust and Salinger v Colting.25 A case like this would be determined in favour of writers like Randell.

Literary re-writes create problems for the concerned parties in that the original writers should get compensation for the work they did. The consideration of compensation for the original writer is legitimate. There are cases where a settlement has been reached between the first writer and the second after the first writer went to court.26 Copyright should therefore protect the original writers in the arts business to allow compensations where the original writer feels infringed in the copying or use of fair use.

Over the past decades, a contentious debate has arisen over the copyright law.27 The main debates have been on peer-to-peer infringements, the duration of copyright, anti-circumvention laws, and the enforcement of the law.28 The debate on literary re-writes and fair use or fair dealing has also been a subject of much debate with a large contribution to the overall controversies. The arguments have been mainly on the use of fair dealings and fair use exceptions in the copyright law to determine how much should be allowed. Some of the people argue that, since knowledge should be shared to allow development, fair use should be allowed for larger contents of materials to be copied without major repercussions. Others however argue that the original writers had an intention to make a livelihood out of their works. It should therefore be compensated for every use of their work that is used against their copyright.29

The second argument is crucial and supported in this essay since any person should be able to earn from his or her works of art as a reward for risking to venture into the industry and spending time on it. Diderot stated, “What form of wealth could belong to a man, if not the work of the mind…the most precious part of him that will never perish, that will immortalise him.”30 Even without the copyright laws, the individual who comes up with literary works is morally entitled to it, and should have the reservation of all rights. The aim of protection of copyright is therefore to protect the author and or recognise their efforts. Copyright laws apply the natural rights notion in their structure, which is the established right of ownership in various cultures for original works of art. Moral rights represent the “most obvious expression of natural rights theory in the structure of the copyright laws.”31

The first copyright statute, the statute of Anne 1710, allowed the owner of literary and other works of art a ‘fixed term of protection’ by the mere reason to allow learning.32 The United States congress allows the protection of literary works by according the protection to authors of a given period. The reason for this is stated as to allow and promote the growth of science and useful arts. According to many of the rulings made in the US and Australia, “the courts in both the United States and Australia have been resolute in pointing out that protection is offered in exchange for the production of creative works.”33 This strategy is a good way of rewarding literary works. Literary rewrites are a way of undermining the gains made in the protection of original works. The society should therefore reward creative works by authors by enabling their protection through copyright laws and minimisation on the use of the fair deal and fair use.34

Fair use has been described as “the most troublesome in the whole law of copyright.”35 Many scholars have criticised it with some writers such as Lessig describing it as “the right to hire a lawyer”.36 Because of this criticism, the Supreme Court has therefore adopted judge Level’s proposal, “fair use should embrace transformative use”.37 This application was of use in the case of Campbell v Acuff-Rose Music where the path was set for “the basis for parody and transformative use to become organising principles within fair use jurisprudence.”38 As stated above, the four factors to be considered in any fair use analysis are stated in section 107 of the United States Copyright Act. This states that the use of a copyright protected work may be a fair. However, it depends on the purpose and character of use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work.39 Australia therefore should import fair use in its copyright act. However, this attempt will call for the modification of the existing provisions to cater for large parodies like TDWG and 60Y.

The protection of original writers by the use of copyright is significant as it enables the progression of important areas in the profession. Resistance to the application of fair use has been made in some countries with the case of Australia being represented by the statement made by the acting Attorney general in 2006 during the enacting of the copyright law in the country. Attorney-General Philip Ruddock MP stated in 2007 that fair use “could cause confusion and uncertainty if introduced here.”40 This was an apt attempt to protect the intellectual property rights in the country, as the move was seen as a means of eroding the gains made in the same area. Fair dealing provisions existing in the copyright law of the country however may support literary re-writes though this may have been one basis of a counter argument for the adoption of fair use exceptions in Australia. An argument for literary re-writes can be made in that secondary writers may enable readers to obtain a more creative work from the existing works of literature.

The strict application of copyright laws has been described as criminalising the creativity of generation Y, and imposing a liability to their creativity.41 This claim has created a society consisting of a ‘creative class’ and a ‘consuming class’ with the copyright laws separating and defining the two.42 The use of fair use and fair dealing should therefore be utilised to allow the two classes to relate.43 As a common rule, the authors in literature and other scientific works will always build upon the works by authors who came before them. Therefore, fair use exception in copyright laws is a good way of allowing this strategy in literary re-writes.

Conclusion

In conclusion, the copyright law in Australia has undergone a series of changes. One of them is the introduction of transformative use as a concept. Transformative use has not yet become a concept in the Australian law within ss 41A and 103AA. Some of the cases stated above support it. By considering transformative use in the Australian law, a case like Sun Trust would be decided in favour of a writer like Randell. The essay supports the importation of fair use as a concept in the Australian copyright law, as it establishes that modification of the existing exceptions in the law is not adequate to account for large parodies like TWDG or even 60Y discussed above. Fair use as a concept and exception should therefore be introduced in the country.

Footnotes

  1. Ian McDonald, Cathy Hammer and Helen Dakin, Copyright (Legal Information Access 2005), 21
  2. Ibid; 23
  3. Ibid; 32
  4. Ian McDonald, Cathy Hammer, and Helen Dakin, Copyright (Legal Information Access 2005), 21.
  5. Christopher Yoo, Copyright (Edward Elgar Pub, 2011) 47.
  6. Ian McDonald, Cathy Hammer and Helen Dakin, Copyright (Legal Information Access 2005), 23.
  7. Ian McDonald, Cathy Hammer and Helen Dakin, Copyright (Legal Information Access 2005), 24.
  8. Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 231 ALR 663.
  9. Christopher Yoo, Copyright (Edward Elgar Pub, 2011) 45.
  10. Ian McDonald, Cathy Hammer and Helen Dakin, Copyright (Legal Information Access 2005), 25.
  11. Ian McDonald, Cathy Hammer and Helen Dakin, Copyright (Legal Information Access 2005), 21.
  12. SunTrust Bank v Houghton Mifflin Company, 268 F.3d 1257 (11th Cir. 2001).
  13. Salinger v Colting, 641 F. Supp. 2d 250 (S.D.N.Y. 2009); Salinger v Colting, 607 F.3d (2d Cir. 2010).
  14. Christopher Yoo, Copyright (Edward Elgar Pub, 2011) 47.
  15. Ian McDonald, Cathy Hammer and Helen Dakin, Copyright (Legal Information Access 2005), 21.
  16. Campbell v Acuff-Rose Music Inc, 510 U.S. 569 (1994).
  17. Campbell, 510 U.S. 569, 580-81.
  18. Copyright Act 1968 (Cth) ss 41A and 103AA.
  19. Campbell, 510 U.S. 569, 580-81.
  20. Christopher Yoo, Copyright (Edward Elgar Pub, 2011) 47.
  21. Harper & Row, Publishers, Inc v Nation Enterprises, 471 U.S. 539 (1985).This case had a perspective that fair speech is a safety valve for the first amendment.
  22. Eldred et al v Ashcroft, Attorney-General, 537 U.S. 186 (2003).The court decision delivered in this case cited the relationship between the first amendment and fair use.
  23. Dr Seuss, 109 F.3d 1394, (9th Cir. 1997).
  24. SunTrust, 268 F.3d 1257, 1277
  25. ALRC Issues Paper above n1 at pp36-40 and 71-79.
  26. Michiko Kakutani, ‘‘Lo’s Diary’: Humbert Would Swear This Isn’t the Same Lolita,’ New York Times 1999. This article reports that an attempt to ‘re-write’ Nabakov’s Lolita from the perspective of the ill-fated heroine resulted in a copyright suit which was resolved by a settlement between the original author’s estate and the second author
  27. Some of the examples are; Jane Ginsburg, ‘How Copyright Got a Bad Name for Itself,’ (2002) 26(1) Columbia Journal of Law & the Arts 61; Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (2001); Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and how it Threatens Creativity, (2001).
  28. Ibid
  29. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and how it Threatens Creativity, (2001).
  30. Denis Diderot, Oeuvres Completes, (1970) 5:331.
  31. Perez &Ors v Fernandez[2012] FMCA 2 (2012). This case demonstrates the challenges posed to moral rights by differences in culture.
  32. Fogerty v Fantasy Inc., 510 U.S. 517, 526 (1994);
  33. IceTV Pty Ltd v Nine Network Australia (2009) 239 CLR, 458.
  34. William Fisher, Theories of Intellectual Property (2000) Berkman Center for Internet & Society at Harvard University. Web.
  35. Dellar, 104 F.2d 661, 662 (2d Cir. 1939).
  36. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, (2004), 187.
  37. Pierre Leval, ‘Toward a Fair Use Standard’ (1990) 103 Harvard Law Review 1105, 1107.See Harper & Row, Publishers Inc. v Nation Enterprises, 471 U.S. 539, 545-546.
  38. 510 U.S. 569 (1994).
  39. Philip Ruddock, ‘Fair Use and Copyright in Australia,’ (2007) 25(2) Communications Law Bulletin 4, 6.
  40. Philip Ruddock, ‘Fair Use and Copyright in Australia,’ (2007) 25(2) Communications Law Bulletin 4, 6.
  41. Christopher Yoo, Copyright (Edward Elgar Pub, 2011) 47.
  42. Ian McDonald, Cathy Hammer and Helen Dakin, Copyright (Legal Information Access 2005), 37.
  43. Christopher Yoo, Copyright (Edward Elgar Pub, 2011) 49.