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Copyright and the Culture of Owning a Myth by Evan Billingsley A View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by ASU Digital Repository Intellectual Property is Not Property: Copyright and the Culture of Owning a Myth by Evan Billingsley A Dissertation Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy Approved October 2018 by the Graduate Supervisory Committee Joseph Russomanno, Chair Douglas Anderson Amira de la Garza Leslie-Jean Thornton ARIZONA STATE UNIVERSITY December 2018 ABSTRACT The purpose of this study is to explore the shifting cultural norms of copyright law, and that concept’s impact on the performance and practice of artists producing original works of authorship. Although related concepts predate it, and today it exists as a subset of a broader category known as intellectual property, the purpose of copyright beginning with the United States Constitution was to allow for a temporary economic monopoly to an author of a fixed creative work. This monopoly was meant to incentivize authors to contribute to the public good with works that promote progress in science and art. However, increases over time in the scope and duration of copyright terms grant broader protections and controls for copyright owners today, while advances in technology have provided the public with the potential for near-limitless low-cost access to information. This creates a conflict between proprietary interest in creative works and the public’s right and ability to access and build on those works. The history of copyright law in America is rife with efforts to balance these competing interests. The methodology for this study consisted of flexible strategies for collecting and analyzing data, primarily elite, semi-structured interviews with professional artists, attorneys, and others who engage with the cultural and legal norms of intellectual property regimes on a regular basis. Constant comparative analysis was used to maintain an emic perspective, prioritizing the subjective experience of individuals interviewed for this research project. Additional methods for qualitative analysis were also employed here to code and categorize gathered data, including the use of RQDA, a software package for Qualitative Data Analysis that runs within the R statistical software program. Various patterns and behaviors relevant to intellectual property reforms as they relate to i artist practices were discussed in detail following the analysis of findings, in an effort to describe how cultural norms of copyright intersect with the creation of original works of authorship, and towards the development of the theory that the semiotic sign systems subject to intellectual property laws are not themselves forms of real property, as they do not meet the categorical requirements of scarce resources. ii ACKNOWLEDGMENTS Thank you to my committee – Dr. Douglas Anderson, Dr. Amira de la Garza, Dr. Leslie-Jean Thornton – for their clear guidance and help throughout the research process. Thank you especially to my chair, Dr. Joseph Russomanno, for his supreme patience in providing invaluable feedback to numerous drafts of this dissertation over the course of many months. Thank you as well to the artists and other professionals who shared their time and thoughts to contribute to the findings of this research project. I should also acknowledge the influence of the many creative individuals who I did not speak with personally, but who have helped define my own understanding of the useful arts since childhood. And thank you to my family and friends, all of whom have been nothing but supportive as I have worked to complete this dissertation. All I am and all I can do I owe to the loving upbringing provided by my mother and father, Roberta and Robert. Finally, thank you to my beautiful wife, Alana, who has shown unending enthusiasm during every step of the research and writing process, most especially in accompanying me to the settings of numerous interviews. Alana, you are my favorite travel companion and I love you. iii TABLE OF CONTENTS CHAPTER Page 1 INTRODUCTION....................................................................................1 Mass Mediated Communication as a Public Good……..........….1 Problem of Interest …...............……...…………...….............….3 Study Purpose ….............................................................………..5 General Research Question Examined..…………….……...........5 Guiding Interview Questions.............……….. …….............…...7 Significance of the Study…...........………………..............…….8 Limitations............................……………......………………......8 2 LITERATURE REVIEW.......................................................................10 Introduction…….………………………………...….............…10 The Printing Press and Free Speech...……... …....….....…....…10 The Statute of Anne...……….................….........................…....13 Early American Conceptions of Copyright.................................16 Wheaton v. Peters and Copyright as a Temporary Grant...….....22 Copyright in New Territories and New Media.........…………...26 WIPO and Copyright as a Natural Right..……………………...33 The 1976 Copyright Act......... ……………..………………......39 The Fair Use Doctrine.………....................................................43 iv CHAPTER Page Fair Use in Derivative, Transformative, and Satirical Work......48 The Public Domain………………….…………………………53 The Expanding Scope of Copyright………………..……….....60 The Conflation of Trademark and Copyright…..…..……….....65 3 METHODOLOGY.................................................................................73 Examining the Balance of Public and Private Interest...............73 Guiding Interview Questions……….….....………....................77 IRB Approval and Preliminary Research......................….........78 Sample....................................................…...............….............80 Constant Comparative Method…............…...............………....82 Participant Observation and Researcher Background.................88 4 FINDINGS..............................................................................................91 The Interviews.............………...…..........…...............…............91 Artists Accused of Copyright and/or Trademark Infringement..93 Artists’ Defense of Intellectual Properties..................................99 Joint Authorship and Collective Works.....................................107 Work For Hire and Copyright as a Transferable Right.............113 The Ethics of Employment and Copyright................................121 v CHAPTER Page The Future of the Public Domain......…...................................125 5 CONCLUSIONS AND DISCUSSION................................................136 A Theory of Rights in Intellectual Property.....……………....136 Economic Fruits of Creative Labor.......……...........................140 Work for Hire and Authorial Paternity.....................................143 Claims of Originality.............................……...........................148 Satirical and Political Derivations of Fixed Creative Works....151 Originality, Unfair Competition, and Confusion in the Marketplace…………………………………………………...157 Legal Reactions to Technological Innovation….......................162 The Role of the Public Domain………….................................167 A Possible Future of Copyright.......…....……..........................170 REFERENCES...............................................................................................................176 Primary Sources: Laws and Treaties by Date...............……..............................176 Primary Sources: Case Law and Court Decisions by Date.................................177 Bibliography........................................................……........................................178 APPENDIX A CONSENT FORM..................................................................................190 B INTERVIEW QUESTIONS...................................................................192 vi CHAPTER 1 INTRODUCTION Mass Mediated Communication as a Public Good The development of copyright law over the last several centuries is a transition from an understanding of the concept as a temporary monopoly privilege granted by either a secular or religious authority to a broadly interpreted property right that may, in effect, last in perpetuity. That same paradigmatic shift in understanding has also changed the perception of copyright as a necessary incentive for authors to create works which will in some way benefit society (i.e., “progress in science and the useful arts,”1) to a perception that the author’s rights – not privileges – are paramount. Which approach to copyright law can be said to result in a better society? A follow-up question must also be asked: a better society for whom? If the author of any given fixed creative work possesses a monopoly on the sale and distribution of that work, then copyright is the conceptual mechanism by which that individual holds such a monopoly. This grant of exclusivity is meant to incentivize the author to perform the creative labor necessary to fix that work initially. This is true whether the fixed creative work in question is a book, visual work of art, or musical composition, among numerous other categories. However, once the initial fixed creative work has been digitally or otherwise mechanically reproduced and distributed, it is irrevocably transformed from a scarce artifact to a public good. A good is any material that satisfies human
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