Sunday, September 05, 2021

Absolutely AWFul

As America celebrates Labor on Labor Day, I'm reminded of the little red hen (who did all the work), and all her neighbors in the barnyard who did not want to share in the effort, but expected to enjoy the fruits of her labor.

In copyright terms, who is the Pig, who the Cat, and who the Rat?

However, in copyright terms, the wheat-seed-to-loaf analogy doesn't hold, because bread is finite and perishable. Not so much with royal wedding cake.

But again, it is the original that is being auctioned. Apparently, the original copyright-infringing works might be untouchable.  One digresses.

Suppose the little red hen had take a photograph of her loaf of bread? That would be a copyrightable work of photographic art. "Barnyard Loaf" would not be in the public domain, even if Pig, Rat, and Cat saw the photo.  Little red hen, after all, created the bread, posed the bread, chose the angle from which to photograph the bread, chose the time of day and the light quality and the direction of the sun and the cast of shadows, and she also chose the type of camera equipment and the film (even if she used an iPhone).
She put a lot of work into her "Barnyard Loaf".

Suppose Cat asked for a limited license to copy the photograph for the reference of an unnamed artist for ephemeral use in "Farmyard Times" to illustrate an article on The Staff of Life.  The artist was Rat, and rat liked to take other artists' photographs, copy them multiple times to create a compilation work (which Rat called "transformative" and "original expression", and conveying a different meaning and social commentary or some such thing.... and was therefore "Fair Use".  Perhaps Rat gave the wholesome loaf a wash of orange, purple, yellow to make it Rat's.  Then, Rat made prints, and sold them, probably for a lot of money, because Rat was well known for that sort of thing and got away with it.

Legal bloggers Sarah Bro  and Ewa Wojciechowska for McDermott Will & Emery walk through the Second Circuit judges' thinking as they decided on a Fair Use case which inspired the above extended analogy.

For good measure, here is the Lexology link:

It's interesting to know how judges weigh the four "fair use" factors, and why LGL prevailed against AWF.

Not in the least Awful, but much less clear (to this writer, who is not an online game enthusiast) is Lawrence Veregin's discussion about copyright in a deck of cards (a compilation), where perhaps every one of the sixty cards in the deck might individually be the copyrightable artwork of someone else. I would not include something I don't understand, but perhaps the discussion is of interest to alien romance followers of Jacqueline Lichtenberg's illuminating series on writing from the Tarot.

Original Link:

Lexology Link:

Thinking of the copyright in a deck of cards reminds me of cover model CJ Hollenbach who once worked with a full pack of romance writers to create a deck of pink cards of romance-writing tips. One hopes that he copyrighted his compilation. He was/is a charming, creative, and hard working gymrat (self described).

All the best

Rowena Cherry 

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