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Wednesday, May 10, 2006

Overheard in New York: Copyright Conundrum

A blog called Overheard in New York serves up bits of conversation overheard in public places, along with catchy titles.  Apparently scores of "informants" feed the blog with snippets of talk, which is then filtered by the editor, Michael Malice.

The site is a trivial example of what Yochai Benkler calls the "wealth of networks," or the power of peer production.  Benkler shows how such amateur production, in a wide variety of settings, synergistically creates far more useful, interesting (or at least accessible!) works than market-based production would. 

Copyright, though, can stand in the way of such projects.  If everyone wants compensation or even recognition for their contribution, cooperation can quickly break down, as Niva Elkin-Koren points out in this very smart piece.  Moreover, as Justin Hughes shows, copyright has been extended to cover smaller and smaller works

I'm wondering about the relation of these ideas to Overheard in New York (and other urban expression).  Do the utterers of the snippets of conversation own a copyright in what they say (given that, once it enters the blog, it's "fixed in a tangible medium of expression"--all the statute seems to require for copyrightability?).  By the same token, might graffiti artists have a copyright in their work?  If governments didn't have sovereign immunity, might they face copyright infringement lawsuits for, say, images of graffiti introduced as evidence in court?  I know these hypotheticals seem a little farfetched.  But as this comic book shows, stranger suits have succeeded!

Posted by Frank3 on May 10, 2006 at 02:23 PM in Intellectual Property | Permalink

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The full definition of "fixed" is provided in 17 U.S.C. s. 101:

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.

The "by or under the authority of the author" requirement would appear to deny copyright protection in the conversation-snippets example.

Posted by: James Grimmelmann | May 10, 2006 3:03:07 PM

Right, what James said. That's why the anti-bootlegging statute has to be under Congress's Commerce Clause authority -- because even though bootlegs are recordings, they are not "fixations" because they are not made "by or under the authority of the author."

Posted by: Bruce | May 10, 2006 3:45:43 PM

Right, and because the federal anti-bootlegging statute doesn't cover the subject matter here (overheard snippets of conversation aren't "sounds . . . of a live musical performance", 17 USC sec. 1101(a)), it seems that speakers wouldn't have recourse under that provision either.

Posted by: Dave | May 10, 2006 3:54:37 PM

In situations where a contributor to a peer production venture *does* hold copyright, surrendering those rights just has to be a condition of contributing. For that reason, for example, Wikipedia sets clear rules that the content you add there is covered by the GNU Free Documentation License.

Posted by: William McGeveran | May 10, 2006 4:39:40 PM

Whoops, I was a little too quick. I explained why bootlegs aren't infringing. But they aren't covered under the Copyright Clause because they are not "writings" of "authors." Obviously Congress could change Section 101 if it wanted, as long as it doesn't contravene the Constitution in doing so.

Posted by: Bruce | May 10, 2006 9:58:21 PM

All these comments make a lot of sense to me--thanks! But what if people want to be overheard, and want it recorded? This is from the article I linked to in the post:

[A]n irony implicit to New York conversation [is] accelerated by a site like Overheard. The city's ubiquitous audience creates a feedback loop: People make their conversation overhearable (clever, aphoristic, filmic, full of punch lines) because they know it will be overheard. In this way, all conversation is overheard in advance. It won't be long before we're all walking around talking, not in movie dialogue, but like quotes from Overheard in New York, hoping that someone's listening.

The irony here is that the person who WANTS to be recorded and put on the blog might well be construed to meet the "authorization" requirement which the commenters mention, but a private person offended by the very thought will not have. So the former might be able to sue on copyright grounds, but not the latter. One more paradox of copyright.

Posted by: Frank Pasquale | May 11, 2006 9:54:31 AM

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