User:Physchim62/Copyright in speeches

This is an essay—the opinion of one editor laid out for discussion—and not Wikisource policy.

"The copyright statute is a law that most people ... don't believe in, that is, they don't believe copyright law says what it says"
Litman, J. (1998). "Consumers and the Global Bargain." Intellectual Property Quarterly 139.

Two main arguments have been used on Wikisource to claim that speeches "cannot" be protected by copyright:

1. Speeches are intangible, and so do not fulfil one of the main criteria for copyright protection;
2. Speeches are works which have been published without a copyright notice, and so released into the public domain.

In my opinion, both of these arguments are mistaken under U.S. copyright law, however appealing each may at first appear.

Fixation

"Fixation in a tangiable form", along with originality, is one of the "two fundamental criteria of [U.S.] copyright protection"^[1] The full criterion is that the work be

"fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. 102

where

"A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is 'fixed' for purposes of this title if a fixation of the work is being made simultaneously with its transmission." 17 U.S.C. 101

The 1909 Act (sec. 4) uses the term "writings" to require fixation, as does the Constitution (Art. I, s. 8): the 1976 Act was, on this point, intended to be a restatement and clarification of the law, and not a change.^[1]

A speech per se cannot be fixed: it is perceived only transiently. To become eligible for copyright, it must be written down or recorded in a film or sound recording ("phonorecord"). A priori, its copyright status could depend on who fixes the speech, exactly when it was fixed and it what form. Before discussing these points futher, it should be pointed out that every speech on Wikisource (with one proviso) has been fixed at some point: a transcription on the web, which is what WS usually offers, is a "copy ... sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration". In any normal circumstances, the contributing WS editor will have obtained the copy on WS from another fixation, either electronic or on paper or even directly from a sound recording. The question of the "authority of the author", and the related question of publication, are discussed below.

Fixation before delivery

In many cases which are interesting to WS, the speaker will have prepared their discourse in advance. In this case, the work is already fixed (and copyrightable) before it is delivered and the only question remaining is whether its delivery has changed the copyright status. However, it is difficult to show that fixation took place before delivery, just as it is difficult to proove that it didn't... What would be the situation if the speaker really was producing the work extempore, or speaking from brief notes rather than from a more or less complete transcription?

Simultaneous fixation

The simultaneous fixation of a speech might be a reporter who makes a shorthand transcription, a sound recording or a film of the speech. In the latter two cases, the sound recording or the film may be copyrightable per se, but I shall restrict my discussion to the copyright in the words of the speech, the part which would be reproduced on WS.

US law

The question of a reporter transcribing a speech does not appear to have been much discussed in U.S. case law. It seems unlikely that the reporter would gain copyright under the test of originality in Burrow-Giles Lithographic Co. v. Sarony 111 U.S. 53 (1884): the transcription is not "the product of [the reporter's] intellectual invention" Id. at 61. Instead, the copyright in a transcription would appear to rest with the speaker, who is the author of the words in the sense of Burrow-Giles. The 1976 Act seems to confirm this with its definition of fixation "under the authority of the author" 17 U.S.C. 101 supra.

Since January 1, 1978, "literary works", that is

"works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia," 17 U.S.C. 101

may be fixed as sound recordings ("phonorecords"). Prior to the entry into force of the 1976 Act, this does not seem to have been the case. However, I have not found any cases concerning literary works and this question, possibly because it is relatively simple to make a paper transcription (valid fixation) of a literary work from a sound recording. It is obviously much harder to transcribe a musical work from a sound recording, and the law is clear on this point that

"[t]he distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein." 17 U.S.C. 303(b)

UK law

It may be helpful to briefly consider the situation in United Kingdom law, which treats the question more specifically. The exact case of a reporter producing a transcription of a speech was decided in Walter v. Lane [1900] AC 539, where the reporter was held to have "exercised considerable labour, skill and judgment" and was so entitled to copyright under the Literary Property Act 1842. However the person dictating a letter was held to retain copyright: Donoghue v. Allied Newspapers [1938] 1 Ch 106, under the Copyright Act 1911. Registration of copyright was abolished in the UK by the 1911 Act.

Bently & Sherman 92^[2] question whether Walter v. Lane would be decided the same way, given the development of recording technology since 1900. Since 1 August 1989, the question is given statutory treatment by section 3 of the Copyright:

"(1) In this part—a 'literary work' means any work, other than a dramatic or musical work, which is written, spoken or sung,

[...]

"(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

"(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded."

This has been treated as new law, rather than as a clarification of old law, Bently & Sherman 228, although this begs the question as to what was the situation under the 1956 Act. The 1988 Act also contains a statutory defence against infringement actions (s. 58), which allows a reporter to publish a complete or partial transcription of a speech, provided that the reporter was personally present and that certain other conditions are met: this defence (which was previously dealt with under fair dealing) does not seem relevant to WS.

Finally, it should be noted that the unautorized fixation of a speech has been illicit in the United Kingdom since the Dramatic and Muscical Performers' Protection Act 1925, now Part II of the Copyright. As such, the reproduction of an unauthorised transcription is an infringement of the speaker's performers' rights.

Conclusion

U.K. law seems to accept without question that there is copyright in the transcription of a speech, but is less clear as to who is the holder of the copyright (before August 1989). U.S. law seems to exclude the reporter from copyright (at least for a verbatim transcription of the kind which WS is likely to host), but a full discussion of ownership can only be made by reference to the question of publication.

Publication without notice

Copyright under the Copyright Act of 1909 arose either when the work was registered at the Copyright Office or when it was published with a notice of copyright. A most speeches do not contain the word "copyright", let alone the other requirements of a valid copyright notice, it has been contended (on Wikisource and elsewhere) that the delivery of a speech amounts to a publication without notice, voiding any claim to copyright.

Before considering the technical definition of "publication", it seems appropriate to examine the notice requirement, as several works on WS are hosted on this basis.

Notice requirement

Section 10 of the 1909 Act states:

"Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor" (emphasis added)

Note that a person may secure copyright in this way: there are other ways to secure federal copyright, such as registration. Note also that the notice need only be attached to copies which are "published or offered for sale [...] by authority of the copyright proprietor": an author does not lose copyright for a publication without notice unless the publication was by the author's authority, and works which are not "published or offered for sale" are not concerned by the notice requirement.

The provisions related to copyright notices are now found in chapter 4 of title 17: the notice is no longer a requirement, even for published works, since the entry into force of the Berne Convention Implementation Act of 1988 on March 1, 1989. The effects of publication without notice between 1978 and 1989 are to be found at 17 U.S.C. 405.

Publication

At common law, an author had a perpetual right to prevent reproduction of his or her unpublished works: Donaldson v. Beckett 4 Burr. 2408 (H.L.), confirmed for the United States in Wheaton v. Peters 33 U.S. 591, 654. This common law right did not extend to "printed" copies Id. 661, and was subsumed (with a limitation on the period) into federal law by the 1976 Act (chapter 3 of title 17, in particular § 303).

Under the 1976 Act, publication is defined as:

"the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication." 17 U.S.C. 101

This is mostly a restatement of the previous law, in which the main criteria are:

1. production of copies
2. distribution of copies with transfer of ownership in the copies
3. distribution of copies to the public

The criterion of the authority of the copyright proprietor, found in section 10 of the 1909 Act, was transferred to 17 U.S.C. 405 (notice of copyright: effect of omission of notice on certain copies or phonorecords). If any of the criteria is not met, the publication will not be held to be "general" and the author will retain their common law copyright. Brown v. Tabb, 714 F.2d 1088, 1091 (11th Cir.1983)

In other terms, a general publication occurred "when a work was made available to members of the public at large without regard to their identity or what they intended to do with the work." Id. (citing Burke v. National Broadcasting Co., 598 F.2d 688, 691 (1st Cir.), cert. denied, 444 U.S. 869, 100 S.Ct. 144, 62 L.Ed.2d 93 (1979)); while a limited publication (one which does not remove common law copyright) was one that communicated the contents of a work to a select group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale. Id. (citing White v. Kimmell, 193 F.2d 744, 746–47 (9th Cir.), cert. denied, 343 U.S. 957, 72 S.Ct. 1052, 96 L.Ed. 1357 (1952)).

Examples of acts which are not general publication include:

• exhibiting a painting at a public exhibition: American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299, 28 S.Ct. 72, 77, 52 L.Ed. 208 (1907)
• performing a play in public: Ferris v. Frohman, 223 U.S. 424, 433, 32 S.Ct. 263, 265, 56 L.Ed. 492 (1912)
• performing a song in public: McCarthy & Fischer v. White, 259 F. 364, 364 (S.D.N.Y.1919)
• delivering a lecture, even if students are allowed to take notes: Nutt v. National Inst. Incorporated for the Improvement of Memory, 31 F.2d 236, 238 (2d Cir.1929)
• showing a film in public: Patterson v. Century Productions, Inc., 93 F.2d 489, 492–93 (2d Cir.1937), cert. denied, 303 U.S. 655, 58 S.Ct. 759, 82 L.Ed. 1114 (1938);
• delivering an address to the public: King v. Mister Maestro, Inc., 224 F.Supp. 101, 106 (S.D.N.Y.1963) (the address in question was Martin Luther King, Jr.'s "I have a Dream")
• broadcasting a work by radio: CBS, Inc. v. Documentaries Unlimited, Inc., 42 Misc.2d 723, 248 N.Y.S.2d 809, 811 (1964) (announcement of the death of President Kennedy)
• broadcasting a film on television: Burke v. National Broadcasting Co., 598 F.2d 688, 693 (1st Cir.), cert. denied, 444 U.S. 869, 100 S.Ct. 144, 62 L.Ed.2d 93 (1979)

Hence a speech is not generally published when it is delivered, only when printed copies (or recordings after 1978) are made available for sale (or otherwise offered) to the public at large.

King v. CBS

A practical example of the copyrightability of speeches is given by the case of Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. . The case concerns the famous speech "I have a Dream", delivered on August 28, 1963 to some 200,000 people in Washington, D.C., and broadcast live on radio and television. In this case, the speech had certainly been fixed beforehand, as a written version (without copyright notice) was available to the press (and, allegedly, members of the public) during the demonstration. A transcript was also published in the newsletter of the Southern Christian Leadership Conference, apparently without authorization.

Dr. King registered the speech for copyright in early October 1963, over a month after delivering the speech, and obtained an injunction upholding his copyright as early as December 1963: King v. Mister Maestro, Inc., 224 F.Supp. 101. The copyright in the speech was renewed in 1991 by Dr. King's widow: copyright will a priori run until the end of 2058.

In 1994, CBS produced a series of history programs including one which reproduced footage of the "I have a Dream" speech (about 60% of the speech). As CBS had not asked for permission and refused to pay royalties, the King estate sued in the United States District Court for the Northern District of Georgia. The district judge gave a summary judgment in favor of CBS, saying "such wide and unlimited reproduction and dissemination as occurred concomitant to Dr. King's speech ... can be seen only as a general publication".

The King estate appealed to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals overturned the decision of the District Court by two to one, criticizing the District Judge for having entered a summary judgment on the question of publication. In two seperate opinions, the Court of Appeals found that the delivery of a speech was a "performance" which could not on its own give rise to general publication (or, in one opinion, any publication at all). Hence Dr. King had not forfeited his copyright in the speech by publishing it without notice.

The case was settled before returning to the District Court, so the other arguments raised by CBS (notably, the question of an implied licence) were not determined.

Footnotes

1. House Report No.94–1476, reproduced at United States Code/Title 17/Chapter 1/Sections 102 and 103
2. Bently, Lionel; Sherman, Brad (2004) Intellectual Property Law (2nd. Edn.) Oxford: OUP. ISBN 0-19926430-9.