Copyright Extension and the Motion Picture Industry - The Rationality behind the Bono Act

On October 27, 1998, President Clinton authorized the Sonny Bono Copyright Extension Act (hereinafter Bono Act), extending the copyright protection terms of every sort of artistic work. ^[1] The most important aspect of its provisions is that, in general, copyrights will endure for a term consisting of the life of the author plus seventy years.^[2]In addition, the copyright of works made for hire will either endure for a term of ninety-five years from the date of publication, or one hundred and twenty years from the date of creation, whichever comes sooner.^[3]Prior to the Bono Act, the general copyright term for a work of art was fifty years from the date of its author’s death. In the case of works made for hire, the copyright endured for either seventy-five years from the date of first publication, or one hundred years from the date of creation, whichever proved to be less. Therefore, the additional twenty-year extension included in the Bono Act constituted a significant change in copyright law.

1. Purpose, Content and Structure of this Paper

Due to the love and affection of the American public for fictional characters, the motion picture industry has long recognized the economical importance of protecting these characters through copyright.^[4] Although lawsuits have been brought based not only on the traditional grounds of copyrights, but also upon trademark and unfair competition laws^[5], copyright is still the most common way of protection in the entertainment industry.^[6]

The general goal of this paper is to discuss the role of copyright and its interrelation with fictional characters and motion picture industry. Specifically, this paper will engage in a penetrating analysis of the rationality behind the Bono Act, which will require a parallel investigation into the proprietorship nature of the constitutional copyright clause.^[7]

This paper will be divided in four parts. The first part will examine the general scope and purpose of copyright law as well as its legislative history in the United States Congress. The relation of copyright with fictional characters and, consequently, with motion picture productions will be examined in the second section of the paper. The third section will explore the duration of the copyrights and the legislative basis for this term. Finally, the ratio legis behind the Bono Act will be discussed. There will be an analysis of the compatibility of the Act with the incentive-access doctrine that underlies the constitutional copyright clause, the main purpose of which is to protect copyrights that promote “the Progress of Science and useful Arts”.

I. Copyright Law in the United States

In the fifteenth century, the invention of the printing press provided an inexpensive method of reproducing literary works. In 1710, Queen Anne enacted a copyright statute in order to confer a property right to works of human mind.^[8] Following this same incentive ideal, the framers of the U.S. Constitution included clause 8 in section 8 of article 1, which reads:

“The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…” (omissions added)

American copyright law differs from the Anne Act in that its purpose is to encourage creativity through economic incentives. This philosophy of the founding fathers was that encouragement of authors and inventors to engage their talents in putting forth individual efforts would be the best way to advance public welfare.^[9]

The constitutional copyright clause refers to the term “Writings”, which initially led some legislators and interpreters to limit their readings in regard to the subject matter of copyright. However, after several decisions on this issue^[10], this term was expanded to encompass any creation of the human mind expressed via a tangible medium, despite being “unknown and unanticipated in the time of the founding fathers.”Following this understanding, Congress has legislated on this issue in an open-minded way. It has gradually broadened the definition the term “Writings” and the means for its embodiment.

In 1790 the First Congress conferred copyright for “any map, chart, book or books already printed”.^[11] Later, designing, engraving and etching were included within the realm of copyrightable subject matter.^[12] From 1831 to 1865, musical composition^[13], dramatic compositions,^[14] and photographs and negatives thereof^[15] were all deemed copyrightable material. In 1870, the copyright statute was rewritten to encompass all artistic works and their respective supportsknown at the time. “Writings” were defined as

“…any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chrome, statute, statuary, and of models or designs intended to be perfected as works of the fine arts”.^[16]

In 1909, Congress declined to list copyrightable works. Instead, it established copyrightability for “all writings of an author”. The intent of the Congress was to be coextensive with the copyright constitutional clause. Thus, it denied any formal limitation to the scope of copyright subject matter.^[17] In passing the Act^[18] the House of Representatives expressed the following rationality:

“The term used in the constitution is ‘writings.’ But Congress has always construed this term broadly, and in doing so has been uniformly supported by judicial decision. It has, for instance, interpreted it as authorizing subject-matter so remote from its popular significance as photographs, paintings, statuary, and dramas, even if unwritten. (…) As thus interpreted, the word ‘writings’ would to-day in popular parlance be more nearly represented by the word ‘works’; and this the bill adopts; referring back, however, to the word ‘writings’ by way of safe anchorage, but regarding this as including ‘all forms’ of record in which the thought of an author may be recorded and from which it may be read or reproduced.”^[19]

The following Acts made it even more evident that works of human mind belonged to a broad range of creative, original and fixed works. Any creative expression of the human mind is copyrightable as long as it is “fixed in a tangible medium.”^[20]

The current Act, 1976 Copyright Act as amended^[21], which was incorporated into Title 17 of U.S. Code^[22], opted for a provision which lists a variety of categories of artistic works that could be within the subject matter of copyright law. Section 102 reads, “[w]orks of autorship include the following categories…”^[23] It exemplifies rather than exhausts the possible categories of copyrightable works.

The basis of the current Act in regard to copyrightable subject matter surrounds two fundamental requirements: originality and fixation.^[24] Even though the term “original works of authorship" was replaced in the current Act, it is meant to incorporate the traditional standard of originality established by the courts in examining the past copyright statutes. Its broad language is designed to avoid the artificial and largely unjustifiable distinctions derived from certain cases^[25] under which statutory copyrightability has been made to depend upon the form or medium in which the work is fixed. It establishes no difference in consideration to what the form, manner, or medium of fixation may be. A motion picture, for example, which has in its content a live transmission will be regarded fixed as long as it is being recorded simultaneously with its transmission. On the other hand, the definition of “fixation” excludes from its concept purely transient reproductions, such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the “memory” of a computer.^[26] In this same way, a fictional character when used by a motion picture industry will be protected despite his original embodiment. If pictorial, his protection will not depend on this new embodiment given by the motion picture industry. However, if literary, this new expression of the character will probably require an additional and independent copyright protection.

Notwithstanding the broad construction of the meaning of “writings”, not every piece of writing is subject to protection under copyright. Instead, courts examine the scope of the term “writings” in relation to the traditional requirements of originality, creativity and tangibility. In 1879, for example, the Supreme Court unanimously declared unconstitutional a Trademark Act passed on the patent and copyright clause grounds. In Trade-Mark cases^[27] the Court said that

“The ordinary trademark has no necessary relation to invention or discovery. (...) [W]hile the word writings may be liberally construed, as it has been, to include original designs for engravings, prints …, it is only such as are original, and are founded in the creative powers of the mind.” [Trademarks do not] depend upon novelty, invention, discovery, or any work of the brain. It requires no fancy or imagination, no genius, no laborious thought. It is simply founded on priority of appropriation.”^[28]

As mentioned above, the underlying philosophy of a constitutional clause empowering Congress to grant copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare by way of the talents of authors in “Science and useful Arts.”^[29]

Copyright laws entitle authors with a right of exclusivity to use their work for a limited time. This is due to the public expectation that after the expiration of the copyright term, the authors’ work will become freely available, falling within the public domain.^[30] During this term, however, the author may claim his or her rights to the reproduction, publication, performance, adaptation, displaying, or distribution of his or her work.^[31] These are economical rights.^[32] They are designed to encourage the author to create and disseminate new works, in the hope that, during the copyright term, this dissemination will provide valuable information both to the general public as well as other authors.

The public demand for enlightenment through access to said information is broad and varied. In light of this fact, it would not be reasonable to specify an aesthetic copyrightability test for artistic works. If artistic skills were evaluated as a requisite to grant copyright, free access to information would be endangered. The artistic ability of an author is not examined so long as it is found to be original and creative.^[33] However, an evaluation of the aesthetic nature of a work may be proper in copyright infringement action for damages. In this case, the test would not be used to determine the copyrightability of the artistic work. The traditional requirements would already have been satisfied for this purpose.^[34] Rather, based on the scholarly premise that copyrights function more efficiently once correlated with their economic value, courts have been practicing this analysis to stipulate the amount of damages to be paid in infringement litigation.^[35] In this context, the element(s) of an artistic work respon-sible for its aesthetic attractiveness are responsible for its economic value because the public is willing to pay more to have access to it. Consequently, the estimation of damages to be paid is calculated in accordance with the economic harm suffered by the author, which on the other hand would be based on the work aesthetic attractive-ness. Artistic works bearing an evident potential for commercial success would be likely to result in higher indemnities, once infringed.^[36] Though economical success is undoubtedly a more proper way to evidence both aesthetic appeal and economic value, this raises problems when a yet unpublished work is infringed. Nevertheless, in determining a statutory damages award, the jury or the court^[37] shall have in mind that what is being protected in the work is the element, or combination of elements, responsible for its aesthetic attractiveness and consequential economic value.^[38]

II. Motion Pictures Industry and Copyright

Although to be copyrightable a work must be original, it does not necessarily follow that the work must be unique. The originality element has nothing to do with the novelty requirement for patenting.^[39] The author may not copy the work of another, but this fact does not stop him from seeking inspiration in it. In fact, creating a new work often involves borrowing material from a prior work or works. The Copyright Act of 1976, §106, determines that authors or copyright holders have exclusive rights to reproduce their works, to produce derivative works, and to publicly perform or publicly display their works.^[40] However, § 102(b) states that “(i)n no case does copyright protection ... extend to any idea… regardless of the form in which it is described, explained, illustrated, or embodied in such work.”^[41]

The purpose of this provision is based on the idea-expression dichotomy, which dictates that copyright protects only the expressed form of an idea. An idea by itself is not copyrightable. Drawing a line between the extension of idea and expression in copyrighted works presents one of the main problems faced by authors in relation to the motion picture industry.^[42]The most noteworthy case that addresses this dilemma is Nichols v. Universal Pictures Corp^[43]. Nichols, the plaintiff, had written a play entitled “Abie's Irish Rose,” which had allegedly been infringed upon by defendant’s motion picture play, entitled “The Cohens and The Kellys”. Both works involved the marriage of an Irish/Jewish couple and the opposition of their respective families. Writing the majority opinion for this case, Judge Learned Hand developed the so-called “Pattern Test”. This test describes a series of levels, at the most general of which can be found ideas, and at the most specific of which lies a particularized set of plot and characters. According to Hand, the line between “idea” and “expression” is embedded somewhere in the middle. In reference to the particular case at bar, Judge Hand held that “[a] comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.”^[44]

Even when the elements of a work of artare sufficiently specific to be labeled an “expression,” they can fall within the realm of a so-called scenes-à-faire doctrine. This is a theory that states that “incidents, characters, or settings which are, as a practical matter, indispensable, or at least standard, in the treatment of a given topic,” are not copyrightable.^[45] Scenes-à-faire doctrine is often raised as a defense in contemporary film‑adaptation litigation. Most of the decisions, however, have favored the accused infringer^[46] rather than the original author. In Walker v. Time Life Films^[47], for example, the court decided that “foot chases and the morale problems of policemen, not to mention the familiar figure of the Irish cop, are venerable and often recurring themes of police fiction.”^[48] This trend in judicial decisions has heavily favored producers of derivative works, i.e. motion picture studios.^[49]However, this judicial tendency also cuts the other way. Decisions which similarly apply the idea-expression and scenes-à-fair doctrines to cases involving fictional movie characters work against the interest of major motion picture studios such as Walt Disney and Warner Brothers. The copyrighted portfolios of these studios include countless characters in which they have substantially invested. When these characters are exposed to a weakened copyright protection, the studios incur in a substantial risk of financial loss.

For the purpose of this paper, a more detailed analysis of fictional character protection is appropriate. Consider the example of Frederico, a hypothetical character depicting a handsome diplomat whose integrity has always jibed with traditional moral standards. In principle, this character would only be protected within the literary context in which he was conceived. For the sake of discussion, imagine this context to be a plot in which Frederico, despite his outstanding morals, begins a secret but passionate affair with the wife of his boss, the ambassador. The ambassador, due to apparent problems with alcohol throws himself from a bridge. Frederico, afraid of being blamed and punished for the misfortune of his boss, breaks up with his lover, who, to his surprise, discloses their relationship to the diplomatic body of the embassy where both her husband and Frederico were employed. Frederico is stripped of his diplomatic status and criminally indicted as a suspect in the “murder” of his superior. During the investigative process, he finds out that the ambassador, whose body was never found, is still alive. He is being subjected to an organized Mafia scheme.

The creator of the story above could copyright each part of his novel. Therefore, unauthorized use of any part would be an infringement. Plagiarism, in theory, is not restricted to literary duplication. Instead, it “includes various modes in which the matter of any publication may be adopted, imitated, or transferred…”^[50] Scenes-à-fair doctrine and idea-expression dichotomy, however, play an important role in supporting defendants in hypothetical infringement cases. For example, a third person could lawfully use a character similar to Frederico in an alternative background. His affair with the ambassador’s wife, the pretended suicide, the prosecution, may fall within the meaning of “idea” or scenes-à-fair doctrine. “A character, however, is a nimble creature. It is not confined to the work in which it first appears, … [it] can be removed from its original context to lead a new and independent life.”^[51]In order to achieve such autonomy, the fictional character should possess as many unique attributes as possible.^[52]

“A character has tangible existence only in the specific words, pictures, and sounds created by its authors. These words, pictures and sounds however, also create an image in the mind of the reader or viewer, an image which may be more vivid than life. This mental image forms the basis for recognizing a character in new situations. It is only in this abstract form that a character can be said to have an independent existence.”^[53]

For a better analysis, fictional characters shall be divided into two basic categories, pictorial and literary characters. While the former is privileged by a visual image, the latter is subjected to the reader’s imagination.

Since images are more identifiable than literary descriptions, pictorial characters are more easily protected independently of their original context.^[54] Courts have often been more generous in protecting characters that bear tangible visual elements than in protecting literary characters, whose image is dependent on abstractions of the human mind.^[55]The following three cases reflect this idea.

In Detective Comics, Inc. v. Bruns Publications, Inc. et al^[56], the characters under analysis were Superman and Wonderman, the latter being an alleged copy of the former. Like Superman, Wonderman concealed his miraculous powers beneath ordinary clothing. When engaged in a heroic deed, both characters would remove this clothing to reveal their skintight acrobatic costumes. The only difference in the costumes of the respective characters was the color. Each superhero was deemed the “champion of the oppressed,” and depicted running toward a full moon "off into the night". While Superman was renowned for defeating foes by stopping bullets with his chest, Wonderman was capable of injuring his adversaries by catching their shells and returning fire with his bare hands. Both characters were described as being the stron-gest man in the world and each was seen to be battling against “evil and injustice.”^[57]

After comparing both characters, the court rejected defendants’ argument that Superman’s powers were typical of heroes of literature and mythology. In concluding that “defendants have used more than general types and ideas and have appropriated the pictorial and literary details embodied in the complainant's copyrights,” the court disallowed any publication of cartoons “portraying any of the feats of strength or powers performed by ‘Superman’ or closely imitating his costume or appearance in any feat whatever.”^[58]

Walt Disney Productions v. Air Pirates^[59] involved the publication of cartoon magazines entitled “Air Pirates Funnies”. The characters and their respective names in defendant, Air Pirate’s, magazines were the same as those of Disney, namely, Mickey Mouse, Donald Duck, The Big Bad Wolf, The Three Little Pigs, and Goofy. In its opinion, the court stated that “‘Air Pirates Funnies’ is an ‘underground’ comic book which had placed several well-known Disney cartoon characters in incongruous settings where they engaged in activities clearly antithetical to the accepted Mickey Mouse work of scrubbed faces, bright smiles and happy endings. It can be said to be a rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture.”^[60] The court dismissed defendant’s claim of fair use and held in favor of the plaintiff.^[61]Although the court emphasized the importance of an analysis of the characters’ personalities in addition to their physical appearance^[62], it acknowledged that comic book characters are more likely than literary characters to contain protectible elements. According to the majority opinion, this is due to the fact that cartoon characters are both visually depicted and possess easily perceptible conceptual qualities.^[63]

In Warner Bros. v. American Broadcasting Cos.^[64], Superman was once more the subject of the court’s analysis. The primary issue of this case was whether the fictional character Ralph Hinkley of the television series “The Greatest American Hero” was sufficiently distinct from Superman. Persuaded by the satirical nature of “Hero,”^[65] the court found for the defendant. The court opined that

“the total perception of the Hinkley character is not substantially similar to that of Superman. (…) Hinkley looks and acts like a timid, reluctant hero, who accepts his mission grudgingly and prefers to get on with his normal life. (…) Hinkley is perplexed by the superhuman powers his costume confers and uses them in a bumbling, comical fashion.”^[66]

The above cases help to demystify the enigmatic nature of the copyright protection of cartoons isolated from their literary context. As implied in Walt Disney Productions v. Air Pirates, a two-step test shall be applied.^[67] First the court examines the visual similarity of the pictorial characters. If this does not yield a determination of infringement, the court may proceed to investigate the cartoons’ personalities. However, “if the original aspects of visual expression are closely copied that should be sufficient for a finding of infringement, even if the two characters behave very differently.”^[68]

As long as Frederico’s role is limited to the novel in which he appears, his character will be considered solely a literary one. In order to endow Frederico with autonomy, the author must endeavor to sharply define the character’s features. For example, Frederico could be described as having a “rounded baby face, black flat hair, green eyes, and an athletic body.” However, even this seemingly distinct portrayal might still conjure up an image in the mind of the court that it considers being too abstract to warrant protection. “[T]he distinction between protectible expression and unprotectible idea has proven to be particularly elusive concerning literary characters”^[69] For this reason, a copyright owner of a literary character will be usually less successful in an infringement suit.

Judge Learned Hand’s aforementioned “Pattern Test”^[70] seems to be the appropriate way of determining infringement of literary characters. However, Hand’s statement that “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly,”^[71] has led some courts to be skeptical about the copyrightability of literary characters. In Lewys v. O’Neill et al.^[72], for example, plaintiff Georges Lewys claimed infringement of the characters in his novel, The Temple of Pallas-Athenae, by the characters of defendant’s play, “Strange Interlude.” The court, however, relying on Nichols, stated that the plaintiff could not copyright his characters any more than Miss Nichols did in relation to her work “Abie’s Irish Rose.” Judge Woosley expressed his conclusion in the following way:

“[i]t is true that there are old and young people in both plots. It is true that there are fathers and mothers and daughters and sons. But, after having carefully read both books more than once, I think it is fair to say that in the plaintiff's book the characters are merely types -- the socially ambitious mother and daughter, the obtuse but successful American business man, the dissipated foreign nobleman, the middle aged English philanderer, and the fabulously rich Russian princess. None of these types is individualized sufficiently to make the characters of the defendant any possible infringement of the plaintiff's copyright.”^[73]

In Warner Bros. Pictures v. Columbia Broadcasting System^[74], the issue was whether Dashiel Hammett, author of the book The Maltese Falcon had the right to further use Sam Spade and other characters from the novel after Warner Brothers purchased the book’s copyright. Hammett had used the Spade character in new stories, copyrights of which were assigned to CBS for the production of a broadcast series called “Adventures of Sam Spade.” Considering Nichols^[75], the Ninth Circuit held that the assignment of Hammet’s work to Warner could not deprive Hammet of the right to use his characters in future stories. Judge Stephens stated that:

“It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.”^[76]

Kurtz, in The Independent Legal Lives of Fictional Characters^[77], states that although the outcome of this case seems to safeguard authors’ rights to their characters, this may not be the case. While authors are free to use their characters in new stories, the court’s analysis may also be interpreted as allowing anyone who wishes free access to these characters.^[78] However, it is unlikely that the court intended its opinion to be construed so liberally. In fact, Judge Stephens, probably fearing such a broad interpretation, emphasized that

“[i]f Congress had intended that the sale of the right to publish a copyrighted story would foreclose the author's use of its characters in subsequent works for the life of the copyright, it would seem Congress would have made specific provision therefor. Authors work for the love of their art no more than other professional people work in other lines of work for the love of it.”^[79]

The Ninth Circuit’s approach has not received widespread support in other circuit courts.^[80] Moreover, some courts have distorted Judge Stephens’ understanding in order to rely on it either to decide for the copyrightability^[81] of characters or to hold them unprotectable.^[82]

Arden v. Columbia Pictures Inds., ^[83], a more recent case, also demonstrates that courts have yet to develop a reliable test for infringement of literary characters. In this case, a novel entitled One Fine Day and the film “Groundhog Day,” which both involved a man forced to continuously repeat one day of his life, were held not substantially similar. According to Judge Chin, though both novel and film were based on the same idea, the two works expressed that idea in very different ways. While the novel was thought to be “dark and introspective,” depicting tragic events like an “explosion on an airplane that kills 192 people, the rape of a young woman, and the suicide of another,” the film is essentially “a romantic comedy about an arrogant, self-centered man who evolves into a sensitive, caring person who, for example, in his repeating day, saves a boy falling out of a tree.”^[84]

Arden was recently criticized by Douglas Y’Barbo in Aesthetic Ambition versus Commercial Appeal: Adapting Novels to Film and the Copyright Law^[85]. In the opinion of Y’Barbo, Judge Chin entirely mischaracterized “One Fine Day.” The theme was wrongly defined. In fact, “what the court believes is [just] the theme, is really a means of expressing the theme.”^[86] Judges, he says, are relying on more than hindsight when invoking the doctrines of scenes-à-faire and idea-expression dichotomy. The particular element seems to the reader to be an inevitable aspect of the story. He claims that the entire set of elements should be protectable as a whole.^[87]

It remains to be seen whether Y’Barbo’s suggestion protects the character’s autonomy. Copyright holders would be happy to own a copyright of all the elements of their novel or motion picture. However, if this meant surrendering their control over the particularity of each element, Y’Barbo’s theory would not be desirable .

Judge Learned Hand’s “Pattern Test”^[88] has proven to be the most reliable analysis for the purpose of comparing literary characters. His statement: “the less developed the characters, the less they can be copyrighted,”^[89] is not only evidence of the copyrightability of literary characters per se, but also an indication of how courts should proceed when facing an alleged infringement.^[90] Objectivity in such analysis is praiseworthy, but the subjective feeling of the jury in a trial when considering both artistic works is also fundamental.^[91]The ordinary observer is often the best person to tell whether a certain fictional character achieved a sufficient developed feature. Once the public, in view of his well-defined characteristics, recognizes a fictional character independent of his original setting, it must be assumed that this character is an autonomous entity. A sharp personality in a character has proven to be a helpful indicia in achieving this outcome.^[92]

Both pictorial and literary characters are encountered in motion picture productions. They are, in fact, the heart of such artistic creations. As witnessed in the above cases involving pictorial prints, when such characters are introduced into the realm of motion pictures, copyright enforcement is not a challenging issue.^[93] The use of literary characters in such productions, by contrast, gives rise to some difficulty for the copyright holder. As previously observed, the copyright owner’s burden of proof in such cases is rarely an easy task.

Additional issues will arise when actors portray a literary character in a film. Often the public associates the character’s features with those of the actor. This association may develop to a point in which the actor will permanently carry the character’s personality and success. This phenomenon happened, for example, with Dracula, performed by Bela Lugosi, and 007, personified by Sean Connery.

In these situations, the actor’s career may be vastly improved on the basis of his character’s fame. However, a copyright infringement suit may be brought if the actor attempts to perform the character outside of the movie setting due to the fear that the character’s personality and integrity may be tarnished.^[94]

Probably because of the peculiar association to his character that an actor can obtain in the public eye, the motion picture industry has cleverly managed to employ different actors to perform famous fictional characters.^[95]

III. Copyright Duration

The earliest federal copyright law, the Copyright Act of 1790^[96], provided for a copyright term of fourteen years as of the date of publication of a work, and renewable for another fourteen years thereafter. The Copyright Act of 1831^[97] provided an initial term of twenty-eight years, which was thereafter renewable for fourteen years.The 1909 Copyright Act^[98] granted to the author a right of exclusivity for twenty‑eight years from the date of first publication of his or her work. The author also retained the right of renewal and extension of the copyright for a further term of twenty‑eight years if he or she applied for this renewal at least one year prior to the expiration of the original term. In setting the right of renewal, the legislators wanted to empower the author to claim copyright in his or her artistic works for his or her entire lifetime.^[99] At the same time, Congress rejected the proposal of a single copyright lifetime term. Congress preferred to keep the current regime of protection, established in the 1870 Act, which divided copyright into two terms. It was correctly assumed that the re-registration methodology would ensure that artistic works with little economical value would become public domain after the expiration of their first term. ^[100]

The 1976 Copyright Act, effective January 1^st, 1978, abolished the two‑term methodology expressed in the previous Acts.^[101] It adopted a single term of copyright protection, which consisted of “the life of the author and fifty years after the author’s death”.^[102] In cases of two or more authors, copyright duration was measured by the life of the last surviving author plus fifty years. Furthermore, anonymous works, pseudonymous works and works made for hire were copyrightable for seventy-five years from publication or 100 years from creation, whichever expired first.^[103] The drafters justified the necessity of a new structure of copyright on four grounds: the increase of life expectancy, the simplicity of having a single term, the necessity of eliminating the expenses of the renewal formalities, and the need of harmonization of the U.S. copyright law with that of the rest of the world.^[104]In explaining the extension of the copyright terms beyond the author’s life, the legislators stated that “the present term of 56 years [was] too short” and could not comply with the incentive doctrine expressed by the copyright constitutional clause.^[105] However, they conceded that the abolition of the two-term structure would likely prevent approximately eighty-five percent of copyrighted works that normally would have fallen into the public domain under the former regime from doing so.^[106] Under the two-term structure, works whose profitability was waning, for instance, were traditionally not renewed after their first term. Under the new act, however, these artistic works would remain protected long after they had ceased to be commercially successful. On the other hand, the drafters contended that the development of the mediums of communication throughout the century had “substantially lengthened the commercial life of a great many works,” and that the prior term was “particularly discriminatory [because of its shortness] against serious works of music, literature, and art, whose value may not be recognized until after many years.”^[107]It was also noted that access to copyrighted works often does not cost anymore than access to works of public domain. Thus, following this line of argument, the sole objective that a short term achieves is to enrich certain users at the expense of authors. Reese emphasizes that “[i]n some cases the lack of copyright protection actually restrains the dissemination of the work, since publishers and other users cannot risk investing in the work unless assured of exclusive rights.”^[108] The drafters concluded that the benefits of a life‑plus‑fifty‑year term surpass its possible harms to the public. The act, it was stated, would be a more effective way to comply with the goals of the incentive theory by better balancing the term of copyright and the value of artistic works in general.^[109]

On October 7^th, 1998, the House of Congress passed the Sonny Bono Act, extending once more the copyright term, which was signed by President Clinton on October 27^th, 1998 and became the Public Law No. 105-298, incorporated into the Title 17 of the U.S. Code.^[110] By passing the Bono Act, Congress once more extended the length of the copyright term, this time by twenty years.^[111] This Act was applied retroactively, affecting existent as well as future copyright terms. The Bono Act will probably not be the last time that the copyright term is lengthened. As observed, the Congress has passed other term extending amendments before, which are inevitably met with public criticism and controversy. Perhaps the most significant problem with these amendments is their effect on the “return”^[112] of copyrighted works into the public realm, which is essential to accomplish the goals set forth by the incentive-access theory^[113]. Some sixty law professors signed a statement of objection to the term extension amended by the Bono Act. They argued that the copyright protection was already long enough to provide sufficient incentives for the creation of new works. In their collective opinion, the new term provisions would run contrary to the public’s interest in the enhancement of public domain with valuable information, which is essential to encourage new creations.^[114]

In addition, it has been claimed that the polemic approval of the Bono Act had no other intention but to serve the interests of the entertainment industries.^[115] This argument especially applies to motion picture corporations, many of the copyrights of which were on the verge of expiration. For example, the copyrights of approximately fifty Disney productions, including characters, cartoons, and movies were set to expire within the first decade of the new millennium.^[116]

Early movies, cartoons and characters, were not the only works of art that were on the verge of becoming public domain. Songs by George Gershwin, novels by Ernest Hemingway, and poems by T.S. Eliot were also nearing expiration. “Rhapsody in Blue,” for example, would have expired this year.^[117] Mark Gershwin, a nephew of George and Ira Gershwin, was among those pushing Congress to approve the Bono Act. At the time of the deliberation of the bill he flatly stated that:

“[his uncle’s artistic work is] a property that was certainly a revenue source for our family. And people can take that work then and, for example, write lyrics to it if they wish, which certainly would not be something that we would want to happen.”^[118]

Senator Orrin G. Hatch, sponsor of the bill that resulted in the Bono Act, in Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium^[119], defends the appropriateness of the new law. He begins by explaining that although the term provided in the 1976 Copyright Act could have accomplished the goal of the incentive doctrine, “[u]nfortunately, it [only] became effective in 1978, just as the digital world and the global economy began to emerge. So, the comprehensive revision that was to bring the Copyright Act up‑to‑date became somewhat outdated almost immediately.”^[120]

Hatch argues that the recognition of works of the human mind as a property right is based on the legal assumption “that private property promotes the most efficient use of property overall.”^[121] Thus, the longer the term of copyright the more efficient should be the incentive to create new artistic works. Hatch insinuates that an absolute and perpetual property right would best promote production of artistic works.^[122]

In assailing the utilitarian view of copyright^[123], Hatch explains that the main goal is to draw a line between Civil Law and Anglo-American jurisprudence. “This distinction, however, is not as stark as is sometimes alleged.”^[124] Natural rights -- which he correctly renames “personal rights”^[125] -- cannot be said to be nonexistent in the U.S. copyright law. In Wheaton v. Peters,^[126] for instance, the Court acknowledged that natural law is the basis of the common law system. However, when related to artistic works, such natural rights are lost after their respective publication. That is why, in accordance with the 1976 Copyright Act, the published status of artistic works was considered the dividing line between federal and common law.^[127]

Under Hatch’s view, the U.S. copyright law is a fusion of both personal and property rights. This approach is based on the assertion that, under the U.S. law, an artistic work “should be protected unless it can be shown that the extent of protection is hampering creativity or wide dissemination … The Copyright Clause, after all, talks about securing for authors the ‘exclusive’ right to their writings. The burden of persuasion should be on those who seek to diminish copyright rights [sic]”^[128]

Hatch’s rationality does not significantly differ from the one which motivated the 1976 Copyright Term Extension Act.^[129] It can be divided into three prongs: i) the need for worldwide harmonization, ii) the incapacity of the U.S. law to provide a fair compensation to authors and their families, and iii) the necessity of updating the U.S. law with the emerging technology which sets up a new market for copyrighted artistic works.^[130] Hatch performs a refined empirical and economical approach to each of these factors.

Firstly, Hatch contends that while the Berne Convention requires only a minimum of a life-plus-fifty-year term protection^[131], the 1993 directive of the Council of the European Communities (hereinafter E.U. directive) required from its members compliance with a minimum standard of a life-plus-seventy-year term by July 1^st 1995.^[132] Hatch points out that even after implementing the aforesaid longer term, based on Article 7(8) of the Berne Convention, a member can still limit the protection of a foreign artistic work to the term conferred in its original country.^[133]Therefore, the copyrights of the U.S. artistic works would expire after the life-plus-fifty-year term in these countries. “Given the popularity of American movies, music, and software abroad, this could cost our major copyright industries millions of dollars, precipitating a serious negative impact on our economy in general.”^[134]

In examining the second prong -- incapacity of the U.S. law to provide a fair compensation to authors and their families -- Hatch argues that artists, like anyone else, work hard to build up a patrimony to support themselves during their families both during their life as well as posthumously. In supporting his assertion, he refers to a statement spelled out by the songwriter Carlos Santana in a hearing before the Senate Commision on the Judiciary.

“When I began my career as a songwriter, I believed that I was building a business that would not only bring enjoyment to people throughout the world, but would also give my children a secure base from which they could, in turn, build their own lives."^[135]

However, due to the increasingly advanced age at which parents are having children, the prior term, according to Hatch, did not allow authors to achieve this elementary goal. Hatch concludes that, because of its failure to provide authors and his or her families with financial secure futures, the prior term resulted in less production of valuable artistic works available to the public.^[136]

The third factor is based on the presumption that the emerging technology has established a new market for the copyrighted artistic works. The current technology extends the commercial life of copyrighted artistic works because it advances and optimizes their embodiment and transmission throughout the globe.^[137] It enables copyright holders to reach a variety of markets to realize profit from their holdings through a number of media.

Bearing the above facts in mind, Hatch questions whether the benefits of the copyright extension of the Bono Act will generally exceed the costs. Hatch acknowledges that the access to free artistic works will decline because they will take longer to fall into public domain. However, based on two factors, such decline will be “offset” by the benefits of the “increased output.”^[138] Firstly, the extension encourages creativity because it guarantees a longer exploitation of artistic works by the author and his or her heirs. Secondly, the longer the term, the higher is the payment for the creation of works made for hire. Finally, Hatch criticizes those who endeavor to weight the future benefits of the extension with its present costs. “The proper framework for weighing costs and benefits is to compare the future costs with the future benefits.”^[139]

Hatch also examines the most polemical issue of his bill, which is whether the extension of the copyright term for works already in existence can have any positive effect upon the incentive doctrine.^[140] Hatch admits that it is hard to support the controversial retroactive effect of his bill. In principle, he concedes, it is true that such extension is excessive and improper to achieve the goals suggested in the incentive-access doctrine. However, he cites two points which he feels demonstrate the appropriateness of the bill. Firstly, the profits of many copyright holders, especially those of the motion picture industry, are reinvested in art. These investments are used to promote either the production of derivative works or the creativity of unknown artists, (the latter is considered a high-risk investment). The extension of the rights of these corporations to their commercially successful copyrighted works increases the money to be allocated in the risky investments. Secondly, Hatch argues that the term extension creates incentives to preserve the memory of existent artistic works that are part of the U.S. heritage. Digitalization, the product of contemporary technology, offers an unparalleled quality in the treatment and fixation of sounds and images. The transfer of the said works into a digital format, according to Hatch, is essential for the preservation of U.S. culture. However, Hatch warns, no corporation would invest their money in such a venture unless it can collect some profit.^[141] “By extending the current copyright term for works that have not yet fallen into the public domain, the Copyright Term Extension Act creates such an assurance by providing copyright owners at least twenty years to recoup their investment.”^[142]

Finally, Hatch states that the lobby of the entertainment industry naturally plays an important role during the deliberation of such bills. However, this should not be viewed negatively. As copyright holders, members of the industry are comprehensibly endeavoring to preserve their investments and rights. Moreover, he emphasizes, due to their role in the national economy and, particularly, their capacity of stimulating creativity, their participation should be welcomed.^[143] After all, he concludes, the underlying reason of these bills is the promotion of “a strong copyright protection to the extent that it does not impede creativity or the wide dissemination of works.”^[144]

Although Hatch’s three-pronged theory relies upon empirical data, it may be examined from different perspectives. Hatch argues in his first prong that the Bono Act will place the United States on the forefront of the international copyright community by harmonizing the U.S. copyright law with that of nations that are members of the Berne Convention and, particularly, with members of the European Community. However, the Berne Convention, as per its last draft dated 1971, requires that the minimum term for copyright protection of general artistic works be no more than fifty years from the date of the author’s death. In response to this, Hatch correctly stresses that the E.U. directive requires from its members the compliance with the minimum standard of life-plus-seventy-year term instead.^[145] Moreover, since countries may elect to protect foreign artistic work based on the law of the country where the works were conceived, copyrights of American works would generally lapse fifty after the author’s death.^[146]

While the enthusiasm of the U.S. Congress in seeking to coordinate its copyright system with that of other nations is commendable, a lot of work is yet to be done. For example, §§ 101 and 302(c) of the 17 U.S.C., which defines the terms of “work made for hire” directly contradicts the corresponding statutes in many member countries. The philosophy behind the Berne Convention harshly censures the work made for hire doctrine.

The U.S. admission of this doctrine is an express way of refusing to recognize the moral rights of authors, which are clearly preserved in Article 6bis(1) of the Berne Convention.^[147]This provision states that the right of authorship is not transferable and that the author shall have the right of claiming it independently of any contractual relationship.^[148]

Hatch’s second prong -- incapacity of the U.S. law to provide a fair compensation to authors and their families -- has some empirical support. However, while parents are giving birth at later ages than in past eras, the birth rate is shrinking throughout the world.^[149] A sufficient patrimony is relatively less today than decades ago when authors had, on average, more heirs to support. Furthermore, due to the third prong of Hatch’s argument -- economical effect of the emerging technology in the copyrighted market – currently one can build up a voluminous patrimony in a much shorter time than in decades past. The big fortunes of the contemporary copyright realm are being amassed within a period of few years.^[150] Therefore, it is certainly possible under a shorter copyright term for authors to support themselves as well as provide for their progeny and extended relatives. On the other hand, within the contemporary culture, which is strongly influenced by the fast pace of omnipresent technology, artistic expressions are likely to be considered outdated by the public in a short time.^[151] Therefore, to meet the continuous demand for new artistic products, authors cannot afford to invest a large amount of labor in a single work, but rather must turn out a large quantity of varied products in a shorter period. Therefore, in a modern society, longer terms seem not to necessarily cope with the copyright clause in encouraging creativity.

As Hatch acknowledges, it is generally agreed that the entertainment industry, as a copyright holder, is certainly entitled to represent their interests via a political lobby.^[152] The implication of copyright law in entertainment is colossal. However, as cautioned by Jessica Litman, the political dynamics underlying copyright legislation have shown that Congress has largely abrogated its role as representative of the general public in such legislation by allowing the various interest groups involved to fight it out, reach a compromise, and then have Congress adopt the negotiated result.^[153]The ultimate objective of intellectual property is to make valuable information available to the general public. While special interest groups are entitled to lobby Congress for favorable laws, it is important that, in doing so, the public interest is not excluded.

Therefore, the final question is whether, in adopting Hatch’s bill, Congress has diligently considered the balance of copyright protection with the public need for information. Hatch’s statement that under the U.S. law an artistic work “should be protected unless it can be shown that the extent of protection is hampering creativity or wide dissemination”^[154], necessitates an investigation of the policy reason underlying the proprietorship nature of the copyright constitutional clause.

J. Locke, in chapter V of his Second Treatise^[155], made a detailed analysis of the socio-economical purpose of property rights. His basic premise is that a person, in the state of nature, needs to support him or herself and, therefore, cultivates land in return for food. For this reason, he or she is entitled to sole possession of the land. An interpretation of this theory can be applied to intellectual property. However, the premise that an individual has an exclusive entitlement to that which he or she creates with her own labor has resulted in different scholarly conclusions.

This author’s approach to Hatch’s rationality will be centered on the understanding expressed by Anthony Reese, in Reflections on the Intellectual Commons: Two Perspectives on Copyright, Duration and Reversion^[156]. Reese’s study on the duration of copyright relies entirely on a comparative analysis of Nozick’s libertarian Lockean view^[157] and of Hale’s Lockean rent-theory^[158].

According to the libertarian doctrine, society rewards labor with property on the grounds that incentives are necessary to accomplish labor. Consequently, property rights are recognized by the State, which has no power to abolish or abridge them. In contrast, Lockean rent‑theory suggests that one is only entitled to a property right which equals the sacrifice of their labor.^[159]

Nozick’s view leads to an acceptance the copyright entitlement as a right per se and, thus, unlimited in time and independent of the State. However, Hale’s rent-theory strongly denies Nozick’s ideas. His positivist approach, instead, argues that property rights are existent only if the State wishes to recognize, enforce, and articulate them.^[160]

In Wheaton v. Peters^[161] the Supreme Court affirmed Hale’s positivist argument. It stated that Congress has the power to elaborate a provision to vest an exclusive right in an author. Congress has the power to prescribe the conditions on which such a right shall be enjoyed. Nobody can benefit from such a right without complying with the requirements of the law.^[162]

Hale’s position is not only concerned with the realm of owners’ property rights, but also with the non-owners’ perspective. Though the public possesses a general sense of the concept of ownership, it is up to the state to lend specificity to this notion.^[163] The legal treatment of copyright has to be “center[ed] on a hard, utilitarian calculus that balances the needs of copyright producers against the needs of copyright consumers.”^[164]

Though the Bono Act contains a term provision more generous to the interests of copyright holders than the similar provisions of previous acts, it nevertheless limits the term of copyright protection. Nozick does not support such limitation. He advocates the perpetuity of copyrights.

Nozick illustrates his argument with the distinction between public access to inventions and to artistic works. He basis his argument on the Lockean “sufficiency” proviso, which says that one can only claim ownership of property if there is a similar quantity of equal quality to be claimed by others.

Patents, Nozick says, deprive people free access to something that would eventually obtain otherwise. Inventions are the result of human contemplation of omnipresent rules of nature. The inventive process is like a race; the first to arrive gets the reward. Had the winner never arrived, someone else would have taken his place. Therefore, a permanent monopoly would overcompensate the inventor. On the opposite side, artistic works are related to the personal talents and life experiences of authors. If an author had decided not to express his subjective feelings, the public would have never had access to it.

“If Shakespeare had died as a child we should never have had Hamlet, but if Newton had died as a child we should certainly have calculus today”.^[165]

Although copyrightable work must be original, it does not necessarily follow that the work has to be unique. The originality element has nothing to do with the novelty requirement for patenting.^[166] While an author may not copy the work of another, it does not stop him from seeking inspiration in it. In fact, creating a new work often involves borrowing material from prior works. Therefore, to argue that the libertarian Lockean view is erroneous and contrary to the aforesaid “sufficiency” proviso because perpetual copyrights hamper others from borrowing from previous work without infringing copyright^[167] is a misperception of the nature of copyrights. Copyright simply protects the author against copying. It only protects the expression in the author’s work.^[168] The ideas within the work remain free to be used by others.^[169]

Nozick would reject the traditional justification for the limitation of copyright, which says that the goals of copyright protection are to encourage creativity in the production of new works. He does not agree that the lapsing of copyright term is a sort of payment to the society in retribution for the temporary monopoly granted to the author. Contrarily, he considers this system an illegitimate means of expropriation of a third party’s right.

Nozick would have opposed the reasoning behind the Bono Act because of its link to the work’s economical value and to the bargain between authors and society.^[170] This goes against his understanding that copyright shall be entitled with basis on authors’ personal and subjective talents. However, it is possible to affirm that even though Nozick would not fully support the Bono Act because of its still limited term provisions, it would indeed endorse Hatch’s general determination in lengthening copyright protection.

Differing from Nozick’s Lockean libertarian view, Hale provides a fairly clear framework for allocation of property rights to private individuals.^[171] The public costs resulting from property entitlements have to meet the costs represented by the individual’s labor sacrifice. Copyright “monopoly”, therefore, should be granted as long as it corresponds to the amount of an author’s costs. The public shall retain any value beyond these costs.^[172]In this context, State intervention is important because it has the authority of not permitting a reward that goes beyond the individual sacrifice.

Hale would be skeptical about any extension of the copyright term. Lifetime protection, for example, would not be welcome by his doctrine. Once authors are entitled only to recover their production costs, the chances of overcompensation in lifetime protection are too high.^[173] However, if we strictly follow Hale’s framework, we will end up in a case by case analysis. Each artistic work requires a different level of sacrifice from its creator. In fact, sometimes this sacrifice may be nonexistent.^[174] In this case, for the sake of simplicity, Hale would be forced to adopt a fixed term. His fear of overcompensation would probably lead him to choose a marginal term, and this term would often undercompensate the author and, thus, discourage his or her creativity. Under Hale’s approach, however, the term follows the economical development of a community. In this sense, his view does not invalidate Hatch’s theory that several social factors shall be considered before the term is fixed. This is not say that Hale would not challenge the general term of life-plus-seventy-year^[175], and the specific terms of ninety-five years and one hundred-twenty years^[176] of the Bono Act as allocating too much of a creative work’s value to its authors, and too little to the community as a whole.^[177]

As observed above, Hatch’s empirical rationality may be contested on several grounds. Depending on the perspective of the analysis, the data he presents leads to completely different conclusions.

Most important is Hatch’s approach to the new commercial value of an artistic work. Although it is evident that emerging technology has broadened the commercial utility of an artistic work, and one could argue that for this reason the copyright should be extended, it is equally clear that the big fortunes of the contemporary copyright realm are being build up in few years’ time. Moreover, artistic works in the modern society are quickly outdated. The contemporary culture is strongly influenced by the fast pace of omnipresent technology. Artistic expressions are likely to be old-fashioned by the public in a much shorter time. Bearing this in mind, the labor and sacrifice invested in the production of each new artistic work will have to decline in order to keep abreast of the public demand for fashionable products. Therefore, in a modern society, longer terms do not necessarily provide an increased incentive for creativity.

Hatch’s assertion that artistic works “should be protected unless it can be shown that the extent of protection is hampering creativity or wide dissemination…”^[178], was likely formulated for the purpose of reaching a middle ground between Nozick’s libertarian view and Hale’s rent-theory interpretation of Lockean “sufficiency” theory. For this reason it is difficult to contradict Hatch’s economical rationality.

Both Nozick and Hale achieve a concurrence of their theories with Lockean “sufficiency” proviso, but take different approaches in reaching this goal. On the one hand, Nozick complies with the proviso by arguing that in view of the idea-expression dichotomy, the public is not prevented from access to the ideas of authors, and therefore, would not be harmed by the twenty-year extension. On the other hand, Hale subjects the protectability of artistic works to a balance between authors’ labor and cost, which is borne by society.

The retroactive effect of the Bono Act exposes a divergence between the theories of Nozick and Hale. While Nozick’s theory seems indifferent to this point, Hale’s rent-theory, by subjecting copyright entitlement to a bargain between authors and society, opposes the extension of existent artistic works. Hale implies that authors, at the time they created existent works, put in a quantity of labor consistent with their anticipated compensation under the copyright regime of that time. Extending the protection of existent works, which provides increased opportunity for additional profit for their authors, has an overcompensatory result. Authors and copyright holder reap the added financial benefit of this extension without having made the corresponding temporal sacrifice. An equally undesirable potential effect of the extension, not considered by Hale’s theory, is economic waste. Some of these copyrighted works are no longer commercially valuable. However, due to the extended protection which they enjoy, the public must still pay for access to them. In these cases, the current copyright regime is forcing the public to pay for a valueless commodity, thereby creating economic waste.

Finally, when the aforesaid conclusion is applied to the real world of motion picture litigation, fictional characters in specific, Nozick’s indifference to the term extension, which is grounded on the idea-expression dichotomy, seems to dissolve. As seen from the cases analyzed in section two of this paper, Judge Learned Hand’s “Pattern Test” has often been misapplied by the courts, which have preferred the protection of pictorial characters to that of literary personages. This reflects the unreliability of Nozick’s argument that ideas are always freely accessible to the public. The costs of such access have proven to be much higher then expected.

Table of Cases

Berlin v. E. C. Publications, Inc., 329 F.2d. 541, cert. denied 379 U.S. 822, (C.A.2 (N.Y.) 1964), 9.

Cable/home Communication Corporation v. Network Productions, 902 F.2d at 829, 858 (11th Cir.(Fla.)1990), 11, 12.

Columbia Pictures Corp. v. National Broadcasting Sys., Inc., 1980 Copyright L. Decisions (CCH) p 25,242, at 16,421, (C.D. Cal. 1980), 23.

Detective Comics, Inc. v. Bruns Publications, Inc. et al, 111 F.2d 432 (2d Cir., 1940), 18.

Harper & Row, Publisher, Inc. v. Nation Enterprises, 471 US 539, 556 (1985), 13, 46.

Hospital for Sick Children v. Melody Fare, 516 F.Supp. 67, 72‑3 (E.D.Va., 1980), 23.

King Features Syndicate v. Fleischer, 299 F. 533, 535 (C.C.A.2 (N.Y.),1924), 16.

Nichols v. Universal Pictures Corp, 45 F.2d 119 (C.C.A.2 (N.Y.) 1930), cert. denied, 282 U.S. 902, U.S.N.Y. (1931), 13, 21, 22¸ 25, 45.

Sid & Marty Krofft Television Prods., Inc., v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977), 12, 25.

Skywalker Records, Inc. v. Navarro, 739 F. supp. 578 (S.D.Fla.1990), reversed by 960 F.2d 134, 60 (11th Cir.(Fla.) May 07, 1992), certiorari denied by 506 U.S. 1022, 113 (U.S.Fla. Dec 07, 1992), 40.

Twentieth Century Music Corp. v. Frith, 645 F.2d 6 (5th Cir. 1981) (per curiam), 12.

United Artists Corp. v. Ford Motor Co., 483 F. Supp. 89, 91 (S.D.N.Y.1980), 19.

Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), cert. denied, 439 U.S. 1132 (1979), 18, 20.

Warner Bros. v. American Broadcasting Cos., 720 F.2d 231 (2d Cir. 1983), 19.

Warner Bros. Pictures v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955), 22.

1. Arrow, Kenneth. Economic Welfare and the Allocation of Resources for Invention, in the Rate and Direction of Inventive Activity (1962).

2. Brylawski. Protection of Characters ‑‑ Sam Spade Revisited, 22 Bull. Copyright Soc’y U.S.A. 77 (1974).

3. Dayan, Leon. The Scope of Copyright in Information: An Alternative to Classic Theory, 42 Fed.Comm.L.J. 239 (1990).

4. Early, Eric P. It’s a Wonderful Life-Motion Pictures Studios Can Regain Control of their Wayward Classics, 1 UCLA Ent.L.Rev. 139 (1994).

5. Fried, Barbara. The Progressive Assault on Laissez Fair: Robert Hale and the First Law and Economics Movement (1998).

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11. Hamilton, Marci A. Copyright Duration Extension and the Dark Heart of Copyright, 14 Cardozo Arts & Ent.L.J. 655 (1996).

12. Hatch, Orrin G. Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium, 59 U. Pitt. L. Rev. 719 (1998).

14. Helfand, Michael Todd. When Mickey Mouse is as Strong as Superman: the Convergence Of Intellectual Property Laws to Protect Fictional Literary and Pictorial, 44 Stan. L. Rev. 623 (1992).

16. Hughes, Justin. The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1988).

17. Hurt, Robert M. and Schuchman, Robert M. The Economic Rationale of Copyright, 56 Am.Econ.Rev. 421 (1966).

18. Johnson, E. Scott. Law Gives Copyrights New Life. The Copyright Term Extension Act Halts the Flow of Protected Works into the Public Domain, 2/8/99 NLJ C12, (col. 4).

19. Jones, Steven G. Virtual Culture: Identity and Communication in Cibersociety (1997).

20. Kurtz, Leslie A. The Independent Legal Lives of Fictional Characters, 1986 Wis. L. Rev. 429 (1986).

21. Kurtz, Leslie A. Copyright: The Scenes-À-Faire Doctrine, 41 Florida L.Rev., 79 (1989).

22. Landes, William M. and Posner, Richard A. An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 331 (1989).

23. Lazzaro, Joseph W. Color it Copyrighted: Protection for Colorized Motion Pictures, 8 J.L. & Com. 397 (1988).

24. Lemley, Mark A. The Economics of Improvement in Intellectual Property Law, 75 Tex.L.Rev. 989 (1997).

25. Litman, Jessica. The Exclusive Right To Read, 13 Cardozo Arts & Ent. L. J. 29 (1994).

26. Litman, Jessica. Copyright and Information Policy, 55 L. & Contemp. Probs. 185 (1992).

28. Litman, Jessica., Copyright Legislation and Technological Change, 68 Or. L. Rev. 275 (1989).

29. Litman, Jessica. Copyright, Compromise, and Legislative History, 72 Cornell L.Rev. 857 (1987).

31. Lunney Jr., Glynn S. Reexamining Copyright’s Incentive-Access Paradigm, 49 Vand. L. Rev. 483 (1996).

32. MacMillan, Robert. Harvard Berkman Center Challenges US Copyright Law, Newsbytes News Network, 1999 WL 5117569 (January 13, 1999).

34. Patterson, L. Ray. Copyright and “The Exclusive Right”of Authors, 1 J.Intell.Prop.Law 1, 27 (1993).

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41. Y'Barbo, Douglas. Aesthetic Ambition versus Commercial Appeal: Adapting Novels to Film and the Copyright Law, 10 St. Thomas L. Rev. 299 (1998).

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Other sources –

[1] Subsecs. (a), (b). Pub.L. 105-298, §102(b)(1), (2), (3) and (4). Incorporated into the 17 U.S.C. (Copyright Act) §302.

[4] For a detailed study of fictional characters, which is one of the most problematic issue in the motion picture realm, see Leslie A. Kurtz, The Independent Legal Lives of Fictional Characters, 1986 Wis. L. Rev. 429. See also Michael Todd Helfand, When Mickey Mouse is as Strong as Superman: the Convergence Of Intellectual Property Laws to Protect Fictional Literary and Pictorial, 44 Stan. L. Rev. 623 (1992); Douglas Y'Barbo, Aesthetic Ambition versus Commercial Appeal: Adapting Novels to Film and the Copyright Law, 10 St. Thomas L. Rev. 299 (1998).

[5] For a specific discussion of the role of trademark and unfair competition laws within the realm of copyrighted material, see Judith B. Prowda, Application of Copyright and Trademark Law in the Protection of the Visual Arts, 19 VLA J.L. & Arts 269 (1995). Prowda explains that trademark law has proved to be a novel, yet overreaching alternative to copyright law for protection of visual artistic style. However, unlike copyright law, trademark law does not protect against copying. Rather, it protects against the use by others of a word, name, symbol or device in connection with the sale of goods or services that might mislead consumers as to the source of those goods or services. Section 43(a) of the Lanham Act creates a federal statutory tort proscribing false designations of origin and false representations. A claim for relief under Section 43(a) generally arises when a trademark, name or distinguishing characteristic of a product is used in a manner likely to cause confusion or to deceive or mislead purchasers as to the source or origin of the goods. For protection under Section 43(a) of the Lanham Act, a trademark must be “distinctive,” that is, it must be either inherently distinctive, or it must have acquired secondary meaning. Second, it must be “nonfunctional.” Finally, there must be a likelihood of confusion as to the origin of the competing good or service. Id. 288-89.

[6] See Kurtz id. supra note 5. Kurtz analyzes the protection available for fictional characters and criticizes the use of trademark and unfair competition laws as an alternative means of protecting it. “The law of trademarks and unfair competition should not provide an alternative means for protecting a character as literary property. This doctrine does not protect creative expression, but protects instead the capacity of a character or its elements to serve as a form of identification, to symbolize the source of goods and services. If a character or one of its distinguishing elements does not identify a single source of goods or services, the doctrine should afford no protection. Nor should there be protection in the absence of likely confusion. (…) Nor should such protection be provided under other names, such as misappropriation or anti‑dilution, except to the extent that the dilution doctrine may be used to prevent tarnishment.” Id. at 522-23.

[8] See Paul Goldstein, Copyright’s Highway: from Gutenberg to the Celestial Jukebox (1994), according to whom the purpose of Queen Anne was to enact “[a]n act for the encouragement of learning, by vesting the copies of printed books in the author or purchasers of such copies…”

[9] For a discussion of the purposes of the U.S. Const. Art. I § 8, cl. 8, see Mazer v. Stein, 347 U.S. 201 (1954).

[10] See, e.g., Burrow-Giles Lithographic v. Sarony, 111 U.S. 53 (1884), where the Court unanimously upheld the copyrightability of a photograph. Justice Miller, on behalf of the Court, stated that “writings in that clause is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writing, printing, engravings, etchings, etc., by which the ideas in the mind of the author are given visible expression.” Id. at 58. See also Bleistein v. Donald Lithographing Co., 188 U.S. 239 (1903), where the Court established that the constitutional copyright clause did not limit the meaning of “useful Arts” to that which could immediately satisfy bodily needs. The Court concluded that painting and engraving, when not intended for a mechanical end, are among the useful arts, the progress of which Congress is empowered by this section to promote. The Court here upheld copyright on circus posters. Id. at 249-250. See also Kalem Co. v. Harper Bros., 222 U.S. 55 (U.S.N.Y., 1911), a case involving the piracy of the copyrighted dramatic rights of a book by a motion pictures corporation. In regard to the meaning of the term “Writtings”, the Court said that:

“It is argued that the law, construed as we have construed it, goes beyond the power conferred upon congress by the Constitution, to secure to authors for a limited time the exclusive right to their writings. Art. I, sec. 8, cl. 8. It is suggested that to extend the copyright to a case like this is to extend it to the ideas, as distinguished from the words in which those ideas are clothed. But there is no attempt to make a monopoly of the ideas expressed. The law confines itself to a particular, cognate, and well-known form of reproduction. If to that extent a grant of monopoly is thought a proper way to secure the right to the writings, this court cannot say that Congress was wrong.” Id. at. 63.

[17] See Weil, Copyright Law (1917), at 214; Howell, The Copyright Law (1952), at 8.

[19] S.Rep.No.6187, 59th Cong., 2d Sess., p. 4 (italics added).

[20] See, e.g., Pellegrini v. Allegrini, 2 F.2d 610 (E.D.Pa., 1924); and Mazer v. Stein, id. supra note 10.

[21] 17 U.S.C. §§101-810; 1001-1010, text of which incorporates the amendments made in accordance to the Berne Convention Implementation Act of 1988 (hereinafter Implementation Act), Pub. L. No. 100-568, 102 Stat. 2853 (October 31, 1988), effective on March 1, 1989. §12 of the Implementation Act provides that “[t]itle 17, United States Code, as amended by this Act, does not provide copyright protection for any work that is in the public domain in the United States”. §13(b) of the Implementation Act also provides that “[a]ny cause of action arising under title 17, United States Code, before the effective date of this Act shall be governed by the provisions of such title as in effect when the cause of action arose.” More significant for the subject of this paper is the Bono Act which amended §302 of title 17 U.S.C. extending the duration of copyright. See id. supra note 2.

[22] The Title 17 of the U.S.C. was firstly enacted by Act July 30, 1947, c. 391, 61 Stat. 652, containing §§ 1-32, 101-116, and 201-216. In 1976 its §203 was amended in accordance to Pub.L. 95-94. Title IV, § 406(a), of August 5, 1977, 91 Stat. 682, effected on January 1, 1978.

[23] § 102 of 17 U.S.C. reads:

“Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship 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. Works of authorship include the following categories:

(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (Italics and emphasis added).

[25] See, e.g., White-Smith Publishing Co. V. Apollo Co., 209 U.S. 1 (1908).

[26] See Revision Notes and Legislative Reports1976 Acts. Notes of committee on the Judiciary, House Report No. 94-1476 (1976).

[27] Trade-Mark Cases, 100 U.S. 82 (U.S.N.Y., 1879).

[29] See Mazer v. Stein, id. supra note 10. See also Boz Scaggs Music v. KND Corp., 491 F. Supp 908 (D.C.Conn. 1980). For a different approach, see Berlin v. E. C. Publications, Inc., 329 F.2d. 541, certiorari denied 379 U.S. 822, (C.A.2 (N.Y.) 1964), where the Court says that, under the constitutional clause, copyright protection is designed to promote progress of science and useful arts, and financial reward guaranteed to copyright holder is but an incident of this general purpose rather than an end in itself.

[30] For a specific study of this issue, see, e.g., Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 Tex.L.Rev. 989 (1997); Robert M. Hurt and Robert M. Schuchman, The Economic Rationale of Copyright, 56 Am.Econ.Rev. 421 (1966); and Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1988).

[32] It is generally accepted that American copyright law has not recognized the basics of moral rights in creations of the human mind. The European concept of copyright law, however, based on the droit moral doctrine, has fully recognized moral rights in addition to economical rights. Under this doctrine, the author has the right to prevent mutilation, alteration, and false suggestion of his authorship. This concept, originally developed by civil law countries, was theoretically subscribed to by all members of the Berne Convention, which expressly recognizes moral rights in Article 6bis. See infra note 149.The U.S., despite being Member of this Convention, has yet to fully endorse moral rights in its copyright law. However, in 1990 the U.S. Congress passed the Visual Artists Rights Act which recognizes certain moral rights, (namely, rights of attribution and integrity), to a limited class of artistic works. See Pub.L. 101-650, Tit. VI, §610, 104 Stat. 5128, incorporated to §106A of Title 17 U.S.C..

[33] For a critique of the incentive-access theory, see Glynn S. Lunney Jr., Reexamining Copyright’s Incentive-Access Paradigm, 49 Vand.L.Rev. 483 (1996), where he reviews the specifics of incentive-access doctrine and defends the superiority of allocative-efficiency theory. Lunney suggests that two conditions must be satisfied before allocating copyright to artistic works. “First, when an individual must decide between investing in one or another work of authorship, copyright should seek to provide protection that will lead the individual to expect a somewhat higher price for investing in the more valuable work. Second, when an individual must decide between investing in a work of authorship or a non‑work product, copyright should seek to provide protection that will lead the individual to expect a higher price for investing in the work when the work has greater social value, and a lower price for investing in the work when the work has less social value.” Id. 490-91.

[34] “A particular ‘element’ in a copyrighted work may be unprotectable for only two reasons: either it is not original or the particular element is not per se protectable, which means it is an idea or concept somehow too abstract to protect. So we begin with the original elements and pare them down using idea/expression, scenes‑a‑faire, and the merger doctrine.” Douglas Y’Barbo, The Heart of The Matter: The Property Right Conferred by Copyright, 49 Mercer L.Rev. 643 (1998), at 698.

[35] See Zacchini v. Scripps‑Howard Broad. Co., 433 U.S. 562, 576 (1977), where the court stated that “the protection [afforded by state law] provides an economic incentive for [the performer] to make the investment required to produce a performance of interest to the public. This same consideration underlies the patent and copyright laws long enforced by this Court.” (italics added) See also Cable/home Communication Corporation v. Network Productions, 902 F.2d at 829, 858 (11th Cir.(Fla.)1990).“In its broad discretion for determining statutory damages, the district court should consider both the willfulness of the defendant's conduct and the deterrent value of the sanction imposed.”

[36] For this reason the aesthetic evaluation may also be called market power test.

[37] Copyright infringement actions for damages present a particularly troublesome problem in this regard. A copyright holder seeking monetary relief has three options under the current Copyright Act provisions. First, the copyright owner may request his “actual damages” plus the “profits” of the infringer not taken into account in computing actual damages (17 U.S.C. §504(b)). Second, instead of recovering actual damages plus profits, the copyright holder may choose to recover an award of “statutory damages” at any time during the litigation prior to the final judgment (17 U.S.C. §504(c)(1)). Finally, the copyright holder, in requesting statutory damages, may attempt to prove willful infringement at trial, which permits the statutory damages to be increased as a sort of punitive damages award. While it is peaceful acknowledged within the scholarly opinions that actions for actual damages and profits require a jury trial, it is not clear whether the same would apply for statutory damages. See, e.g., Gnossos Music v. Mitken, Inc., 653 F.2d 117 (4th Cir. 1981) (right to jury trial under 1976 Act); Twentieth Century Music Corp. v. Frith, 645 F.2d 6 (5th Cir. 1981) (per curiam) (no right to jury trial under either the 1909 or 1976 Act); Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010 (7th Cir. 1991) (right to jury trial under 1976 Act as to liability but judge determines statutory damages award); Sid & Marty Krofft Television Prods., Inc., v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (right to jury trial under 1976 Act as to liability but judge determines statutory damages award); Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829 (11th Cir. 1990) (no right to jury trial under 1976 Act). For a specific study of this issue, see also Robert W. Phillips, Cass County Music Co. v. C.H.L.R., Inc.: Law, Equity, and the Right to Jury Trial in Copyright Infringement Suits Seeking Statutory Damages, 51 Ark. L. Rev. 117 (1998).

[38] See Y’Barbo id. supra note 35, at 696.

[39] §102 of the 35 U.S.C (Patent Act) states the conditions and requirements for patentability.

[41] See 17 U.S.C., § 102(b). (italics added)

[42] See Douglas Y'Barbo, id. supra note 5. See also Feist Publications Inc. v. Rural Telephone Service, Inc., 499 U.S. at 340, 344-45 (1991). The Court stated that “[t]he most fundamental axiom of copyright law is that ‘[n]o author may copyright his ideas or the facts he narrates,’” in a quotation of Harper & Row, Publisher, Inc. v. Nation Enterprises, 471 US 539, 556 (1985).

[43] 45 F.2d 119 (C.C.A.2 (N.Y.) 1930), certiorari denied, 282 U.S. 902, U.S.N.Y. (1931).

[44] 45 F.2d 119, 122(C.C.A.2 (N.Y.) 1930).

[45] See Alexander v. Haley, 460 F. Supp. 40, 45 (S.D.N.Y. 1978), in which plaintiff claims the infringement of his book, “Jubilee,” by Alex Haley’s book and television show, “Roots.” The court does not consider plaintiff’s underlying idea involving “fleeing slaves pursued by dogs through the woods, sex between slaves owners and females slaves, auction sales of slave children away from their families, and so one,” to be copyrightable and, thus, it falls within the meaning of scenes-à-faire. Quoted by Paul C. Weiler, Entertainment, Media, and the Law (1997), at 285. For a specific study of this doctrine, see Leslie A. Kurtz, Copyright: The Scenes-À-Faire Doctrine, 41 Florida L.Rev., 79 (1989).

[46] See Kretschmer v. Warner Brothers, 1994 WL 259814, *8 (S.D.N.Y., 1994). “The basic premise of both works, judgment in the afterlife, constitutes an idea or a theme, and accordingly, is not protectible under the copyright laws”.

[49] In this regard, see Douglas Y'Barbo, id. supra note 5, at 324, note 106, where he criticizes the approach made by the court in Kretschmer v. Warner Brothers. “The courts have completely mischaracterized these works. In both instances, what the court believes is the theme, is really a means of expressing the theme. If this is correct, then is it sensible to invoke the scenes a faire doctrine?”

[50] King Features Syndicate v. Fleischer, 299 F. 533, 535 (C.C.A.2 (N.Y.),1924).

[51] Kurtz, id. supra note 5, at 430.

[52] See Nichols, id. supra note 44, at 121, where Judge Learned Hand stated that “[i]f Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. (…) It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” (italics added).

[54] See Brylawski, Protection of Characters ‑‑ Sam Spade Revisited, 22 Bull. Copyright Soc’y U.S.A. 77 (1974), at 84, where he recognizes that the visual nature of cartoons capacitate them to better achieve autonomy in relation to his original setting.

[55] See Kurtz, id. supra note 5, at 444.

[59] 581 F.2d 751 (9th Cir. 1978), cert. denied, 439 U.S. 1132 (1979).

[62] Id. at 757 footnote 14. See also United Artists Corp. v. Ford Motor Co., 483 F. Supp. 89, 91 (S.D.N.Y.1980). This case involved the cartoon character “Pink Panther”. Though court said that defendant’s animated “cat” did not resemble “Pink Panther” in appearance, manner of movement or personality, it acknowledge the importance of examining both the personality of the appearance of characters.

[65] The producer of “The Greatest American Hero” described the program as being about “what happens when you [an ordinary person] become Superman.” Id. at 236.

[71] See Nichols, id. supra note 53 (italics added).

[72] 49 F.2d 603 (S.D.N.Y. 1931).

[74] 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955).

[80] See Goodis v. United Artists Television, Inc., 425 F. 2d 397, 406 footnote 1 (2d Cir. 1970); Toy Corp. v. Kenner Prods., 443 F. Supp. 291, 301 (S.D.N.Y. 1977).

[81] Columbia Pictures Corp. v. National Broadcasting Sys., Inc., 1980 Copyright L. Decisions (CCH) p 25,242, at 16,421, (C.D. Cal. 1980).

[82] See Hospital for Sick Children v. Melody Fare, 516 F.Supp. 67, 72‑3 (E.D.Va., 1980).

[85] Id. supra note 5, at 324, footnote 106.

[90] Kurtz says that Judge Learned Hand’s quoted statement is been misapplied by the courts, which, instead of examining the features of the fictional characters, are considering whether they are copyrightable at all. See id. supra note 5, at 462-63. The author of the present paper does not disagree with such a statement, but the fact that other courts are distorting Hand’s words should not compromise his careful analysis. Courts will always misinterpret other courts’ opinions. Unfortunately, there is no mathematical methodology in the art of law.

[91] For a study of jury’s role in copyright infringement lawsuits, see Robert W. Phillips, id. supra note 38.

[92] For a parallel application of the importance of the personality indicia, see Sid & Mary Krofft v. McDonalds, 562 F.2d 1157, 1169 (9th Cir. 1977), where the court analyzing the characters’ setting, noted that plaintiff’s characters had developed personalities and particular ways of interacting with one another and their environment.

[93] Actually, the only problem that can be raised from the utilization of a printed pictorial character in an audio-visual work concerns the voice given to it. Since this voice belongs to a human being, this problem would fall within the province of publicity rights. See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977); Joplin Enterprises v. Allen, 795 F. Supp. 349 (W.D.Wash., 1992). Sometimes, however, a pictorial character reflects the features of a human being, whom is chosen and/or hired by the author in order to assist him in the embodiment of the character. This was the case of Dyna Taylor, a student at the California Institute of Arts, who modeled for the animators of Disney to define Pocahontas’ face. Publicity right would apply here. See Paul C. Weiler, Entertainment, Media, and the Law (1997), at 186.

[94] For example, if Val Kilmer signed a contract with a corporation to advertise food products and the commercial depicts him in his role in “Batman Forever,” directed by Joel Schumacher, a problem of suit for infringement would probably be brought.

[95] See, e.g., “007”, which was personified by Sean Connery in “Dr. No,” “From Russia With Love,” “Goldfinger,” “Thunderball,” “You Only Live Twice,” Diamonds are Forever,” and “Never Say Never Again;” by George Lazenby in “On Her Majesty Secret Service;” by Roger Moore in “Live and Let Die,” “The Man With The Golden Gun,” “The Spy Who Loved Me,” “Moonraker,” “For Your Eyes Only,” “Octopussy,” and “A View To a Kill;” by Timothy Dalton in “The Living Daylights,” and “License To Kill;” and by PierceBrosnan in “Golden Eye” and “Tomorrow Never Dies.”

[96] Act of May 31, 1790, ch. 15, 1 Stat. 124.

[97] Act of February 3, 1831, c. 16, 4 Stat. 436.

[98] Act of March 4^th, 1909, ch. 320, §23, 35 Stat. 1075, 1080.

[99] See H. R. Rep. No. 2222, 60th Cong., 2^nd Sess. 14 (1909). “The terms, taken together, ought to be long enough to give the author the exclusive right to his work for such a period that there would be no probability of its being taken away from him in his old age, when, perhaps, he needs it the most.”

[100] R. Anthony Reese, Reflections on the Intellectual Commons: Two Perspectives on Copyright, Duration and Reversion, 47 Stan. L. Rev. 707 (1995), at 716. See also H.R. Rep. No. 2222, id supra, at 14: “A very small percentage of the copyrights are ever renewed. All use of them ceases in most cases long before the expiration of twenty‑eight years. In the comparatively few cases where the work survives the original term the author ought to be given an adequate renewal term.”

[101] 17 U.S.C. § 302 as of Pub. L. 94-553, Title I, § 101, Oct. 19, 1976, 90 Stat. 2572.

[104] H.R. Rep. No. 1476, 94^th Cong., 2d Sess. 135 (1976), at 134-135. As of Article 7(1) of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter Berne Convention), the adoption of the life-plus-fifty-year term was thus a prerequisite for the U.S. to become Member of this Convention. On March 1, 1989, in accordance to the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, the U.S. finally joined the Berne Convention.

[108] Reese, id. supra note 101, at 719.

[109] Id. supra note 105, at 136.

[112] In fact, the use of term “return” is not accurate because artistic works are not encountered in the public domain before being copyrighted. Without the intellectual labor of the author an artistic works would probably never being accessible by the public in general. See Robert Nozick, Anarchy, State and Utopia (1974), at 182.

[113] For a critic of the incentive-access theory, see Glynn Lunney, id. supra note 34.

[114] See Statement of Copyright and Intellectual Property Law Professors in opposition to H.R. 604, H.R. 2589 and S. 505, submitted to the Judiciary Committees on the Judiciary, U.S. Senate, U.S. House of Representatives.

[115] See Robert MacMillan, id. supra note 1, where a Harvard Law Professor, Jonathan Zittrain, referred to the Bono Act as the “Steamboat Willie rule”, as a reference to the first published Walt Disney cartoon, which would be falling in public domain in 2003. He stated that “every time Steamboat Willie sails his way toward the public domain… ‘Congress passes a law extending copyright domain on a whole library of public works.’”

[116] For example, Mickey Mouse (Steamboat Willie), Pluto, Goofy and Donald Duck, were scheduled to expire in 2003, 2005, 2007, and 2009. See Robert MacMillan, id. supra note 1.

[117] This song has made a small fortune for the Gershwin family. United airlines reportedly paid close to a million dollars for the right to use the song in a national ad campaign. See Madeleine Brand and Bob Edwards, Business and Domestic, Morning Edition (June 8, 1998), 1998 WL 3307617.

[119] Orrin G. Hatch, 59 U. Pitt. L. Rev. 719 (1998).

[123] According to the utilitarian view, works of the mind should be recognized as property so long as they are able to promote the progress of knowledge and the useful arts. See, for further understanding of the proprietary doctrines, Kenneth Arrow, Economic Welfare and the Allocation of Resources for Invention, in the Rate and Direction of Inventive Activity (1962), 617, where he acknowledge that “[i]n a free enterprise economy, inventive activity is supported by using the invention to create property rights; precisely to the extent that it is successful, there is an underutilization of the information.” See also Jessica Litman, The Public Domain, 39 Emory L. J. 965 (1990), where she produces an author's rights perspective; and William M. Landes and Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 331 (1989), in which they perform a detailed economical analysis of copyright based on important underlying doctrines, such as the distinction between idea and expression and the fair use doctrine, which can be understood as “attempts to promote economic efficiency by balancing the effect of greater copyright protection -- in encouraging the creation of new works by reducing copying -- against the effect of less protection -- in encouraging the creation of new works by reducing the cost of creating them.”

[125] See generally G. Hegel, Philosophy of Right (1821), at 41-43, where he demonstrates that an individual evidences ownership of property by imposing his will on it and thereby 'occupying' it. No promotion of “Progress of Science and useful Arts” is required. Copyright belongs to authors because they create the work.

[127] See id. supra note 121, at 722.

[129] See supra “III. Copyright Duration.” and id. supra note 105.

[131] Berne Convention, Article 7(1) (Paris Text, 1971). Article 7(1) reads: “The term of protection granted by this convention shall be the life of the author and fifty years after his death.”

[132] Council Directive 93/98, 1993 O.J. (L 290) 9. Hatch further points out that according to the Copyright Office, all the states of the European Union have complied with the directive. Moreover, he stresses that even the countries that are looking forward to joining the European Union “are likely” to do the same. See id. supra note 120, at note 22.

[133] Article 7(8) reads: “In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.” (italics added)

[134] Hatch, Id. supra note 120, at 730.

[135] The Copyright Term Extension Act of 1995: Hearing on S. 483 Before the Senate Comm. on the Judiciary, 104th Cong. 20, 23 (1995), at 57 (statement of Carlos Santana). Quoted by Hatch in id. supra note 120, at footnote 39.

[136] Hatch, Id.supra note 120, at 733.

[137] Id. supra note 136, at 18 (testimony of Marybeth Peters, Register of Copyright and Associate Librarian for Copyright Services, U.S. Copyright Office, Library of Congress).

[138] Hatch, Id. supra note 120, at 733.

[146] For the content of Article 7(8) of Berne Convention, see id. supra note 134.

[147] It is generally accepted that American copyright law has not recognized the basics of moral rights in human mind creations. The European concept of copyright law, however, based on the droit moral doctrine, has fully recognized moral rights in addition to economical rights. Under this doctrine, the author has the right to prevent mutilation, alteration, and false suggestion of his authorship. This concept, originally developed by civil law countries, was theoretically subscribed to by all members of the Berne Convention, which expressly recognizes the moral rights in Article 6bis. See infra note 149.

The U.S., despite being a member of this Convention, has still not fully endorsed the moral right in their copyright legal regime. However, in 1990 the U.S. Congress passed the Visual Artists Rights Act which recognizes some of the moral rights - namely, right of attribution and integrity - to a limited class of artistic works. See Pub.L. 101-650, Tit. VI, §610, 104 Stat. 5128, incorporated to §106A of Title 17 U.S.C..

[148] Article 6bis reads:

“(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

[149] See http://www.census.gov/ftp/pub/ipc/www/idbprint.html

[150] See, e.g., “2 Live Crew”. The Crew inaugurated the up-tempo Miami Bass sound with 1984's refreshingly blunt if not altogether funky “Throw the D” (as in “dick”). But what brought the band national renown was the June 1990 declaration by a Broward County judge that their third album, As Nasty As They Want to Be (1989, including the single “Me So Horny”), was legally obscene. The record went on to sell three million copies, and the ruling was overturned on appeal, thanks in part to the testimony of expert witnesses such as Harvard Professor Henry Louis Gates. See Skywalker Records, Inc. v. Navarro, 739 F. supp. 578 (S.D.Fla.1990), reversed by 960 F.2d 134, 60 (11th Cir.(Fla.) May 07, 1992), certiorari denied by 506 U.S. 1022, 113 (U.S.Fla. Dec 07, 1992). See also Bill Gates, Bill Gates Speaks: Insights from the World’s Greatest Entrepeuner (compiled by Janet Lowe – 1998); Bill Gates, The Road Ahead (1996).

[151] For a study of this tendency, see Steven G. Jones, Virtual Culture: Identity and Communication in Cibersociety (1997); David Porter, Internet Culture (1997).

[152] For a criticism of lobby of entertainment industries in the deliberation of bill regarding copyright law, see L. Ray Patterson, Copyright and “The Exclusive Right”of Authors, 1 J.Intell.Prop.Law 1, 27 (1993), where he criticizes that “industry plays a dominant role in shaping copyright legislation with small-minded concerns, weighted as they are by the desire for control and profit.”

[153] See Jessica Litman, The Exclusive Right To Read, 13 Cardozo Arts & Ent.L.J. 29 (1994); Jessica Litman Copyright and Information Policy, 55 L.&Contemp.Probs. 185 (1992); Jessica Litman, Copyright Legislation and Technological Change, 68 Or.L.Rev. 275 (1989); Jessica Litman, Copyright, Compromise, and Legislative History, 72 Cornell L.Rev. 857 (1987).

[155] J. Locke, Two Treatises of Government(1963, 3d ed.), 1698.

[157] SeeRobert Nozick, Anarchy, State and Utopia (1974).

[158] SeeRobert Lee Hale, Economic Theory and the Statesman, in The Trend of Economics 191, 215 (1924). See also Barbara Fried, The Progressive Assault on Laissez Fair: Robert Hale and the First Law and Economics Movement (1998).

[159] Reese, id. supra note 101, at 709.

[160] Hale, id. supra note 159.

[162] “Th[e] congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision… Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested? Such a presumption is refuted ... Congress … by this act, instead of sanctioning an existing right, as contended for, created it.”Id. at 661.

[163] “[I]n ‘protecting property,’ the law is intervening to restrict what would otherwise be the liberty of the non-owner [to make any use of the owner’s property]; [this same law] also restricts the owner’s liberty in respect of other property owned by the non-owners of this property.” Hale, id. supra note 159.

[164] Goldstein, id. supra note 9, at 168-69.

[165] Nozick, id. supra note 158, at 182.

[166] §102 of the 35 U.S.C (Patent Act) states the conditions and requirements for patentability.

[167] See William M. Landes and Richard A. Posner, id supra note 124, at 333.

[169] 17 U.S.C. § 102(b) reads: “In no case does copyright protection for an original work… extend to any idea.... regardless of form in which it is described...” See also Feist, id. supra note 44, at 344-45. Quoting Harper & Row, Publisher, Inc. v. Nation Enterprises, 471 US 539, 556 (1985), the court stated that “[t]he most fundamental axiom of copyright law is that ‘[n]o author may copyright his ideas or the facts he narrates.’”

[170] Reese, id. supra note 101, at 724.

[171] Reese, id. supra note 101, at 725.

[172] See Robert L. Hale, Political and Economic Review, 9 A.B.A. J. 39, 39 (1923).

[173] See Reese, id. supra note 101, at 727, where he particularly makes this same approach but in regard to the Copyright Term Extension Act of 1976.

[174] If artists love to work in the production of artistic work and would do that in any case, this argument may be weakened.

[176] 17 U.S.C. §302(c). These two terms apply for anonymous works, pseudonymous works, and works made for hire. The term of ninety-five years is counted from the publication of such works. The term of one hundred and twenty years counts as of its creation. The statue indicates that whichever expires first is the one to be taken into consideration.

[177] Reese, id. supra note 101, at 726.