Alabama Law Scholarly Commons Articles Faculty Scholarship 2006 Consumer Modification of Copyrighted Works Alan L. Durham University of Alabama - School of Law, [email protected] Follow this and additional works at: https://scholarship.law.ua.edu/fac_articles Recommended Citation Alan L. Durham, Consumer Modification of Copyrighted Works, 81 Ind. L.J. 851 (2006). Available at: https://scholarship.law.ua.edu/fac_articles/90 This Article is brought to you for free and open access by the Faculty Scholarship at Alabama Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Alabama Law Scholarly Commons. Consumer Modification of Copyrighted Works ALAN L. DURHAM* INTRODUCTION .......................................................................................................851 I. EXPRESSION TRANSFORMED .........................................................................855 A . Derivative W orks ................................................................................856 B. Transformation and Presentation...................................................... 861 C. Moral R ights .......................................................................................863 D . F air Use .............................................................................................866 E. De Minimis Infringement.................................................................... 875 II. EXPERIENCE TRANSFORMED .........................................................................877 A. FirstSale and Other Statutory Rights ................................................877 B. The Consumer Right to Time-Shift .....................................................880 C. Modifications of Copyrighted Software.............................................. 884 III. THE GATHERING STORM ...............................................................................894 IV. THE PROS AND CONS OF CONSUMER MODIFICATION ....................................900 A. An Economic Perspective................................................................... 900 B. Consumer Expectations...................................................................... 905 C. Integrity, Privacy,and Autonomy .......................................................908 V . SEEKING BOUNDARIES ..................................................................................910 C ONCLUSION ..........................................................................................................914 INTRODUCTION Whether they are writings, musical compositions, works of visual art, or dramatic presentations,' traditional works of authorship offer consumers a simple alternative: "take it or leave it." However much consumers may desire it, Rick cannot join Ilsa on the plane leaving Casablanca; Ahab cannot survive the voyage of the Pequod; and a recorded performance of Mozart's Symphony No. 40 in G Minor cannot be heard, even on the most sophisticated reproduction equipment, in any key other than G minor. That is not to say that consumers are powerless; they exercise their power by "leaving it"-by forsaking authors who fail to satisfy in favor of others who succeed. Consumers change the channel, cancel their subscription, or choose another book. New technologies assign consumers a more active role in shaping their experience of copyrighted works. Recent video games, for example, provide the complex plots and immersive settings of motion pictures, but in a way that allows consumers to * Professor of Law, University of Alabama School of Law. J.D. 1988, University of California, Berkeley. I would like to thank the University of Alabama Law School Foundation and Dean Kenneth Randall for their support of this research. I would also like to thank Creighton Miller of the University of Alabama School of Law library for his expert assistance in locating sources. 1. Copyright protection extends to "original works of authorship fixed in any tangible medium of expression," including, among other things, literary works, musical works, motion pictures, pictorial and sculptural works, sound recordings, and architectural works. 17 U.S.C. § 102 (2000). INDIANA LAW JOURNAL [Vol. 81:851 participate in the unfolding narrative. 2 Internet Web sites feature graphics and the written word in the nonlinear medium of hypertext, which invites readers to explore according to their own predilections. In these cases, the author intends the work to be experienced in this flexible, interactive fashion; however, as technologies develop and consumer expectations change, the desire of individuals to customize their experience will come into conflict with the desire of authors to control how their works are presented. The recent and well-publicized dispute between certain motion picture directors and editing service ClearPlay shows that the conflict has already begun.3 For a fee, ClearPlay allows consumers who have purchased a DVD copy of a copyrighted motion picture to experience that motion picture without profanity, vulgarity, or violence. Critics describe this practice as an assault on the director's artistic integrity and a violation of copyright. Consumers might defend it as a prerogative of ownership, an exercise of their individuality, or a defense of "family values." As more works of authorship are delivered through digital media, the temptation can only grow to improve, rearrange, customize, and remix. Traditionally, copyright law has been a product of compromise, balancing the rights of authors against the interests of those who would benefit from their work. The ultimate goal of copyright, as stated in Article 1, Section 8 of the Constitution, is to promote "the Progress of Science," 6 which may be expressed in modem terms as the advancement of knowledge and the development of culture. 7 If the rights of authors are too weak, copyists reap the benefits of their work, and deny authors the financial rewards necessary to spur their labors.8 Authors produce less and the intellectual life of the nation suffers. Yet "the Progress of Science" also depends upon some freedom to build upon existing works of authorship. 9 Works of art allude to prior works, 2. See Suneel Ratan, Games Close in on Citizen Kane, WnED NEws, Aug. 11, 2003, http://www.wired.com/news/culture/0,1284,59964,00.html. According to the article, a recent Star Wars video game provides a narrative experience in many ways superior to a motion picture because it is interactive. Players choose their gender, their behavior, and, ultimately, whether or not to align themselves with the Dark Side of the Force. 3. Huntsman v. Soderbergh, No. 02-CV-1662 (D. Colo. Aug. 29, 2002). Other parties to the case provided similar editing services, under names such as Movie Shield and Movie Mask. 4. For a discussion of the specifics of ClearPlay technology, see infra Part IIl. 5. The Web site of the Director's Guild of America, www.dga.org, is a fruitful source of press releases and other materials critical of the editing practices. The counterclaims filed in Huntsman set out claims of trademark and copyright infringement alleged by both the directors involved in the litigation and the motion picture studios. 6. The entire passage reads: "[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." U.S. CONST. art. 1, § 8, cl. 8. 7. See Karl B. Lutz, Patentsand Science: A Clarificationof the PatentClause of the U.S. Constitution, 18 GEO. WASH. L. REV. 50, 51 (1949) ("The word 'science,' which comes from the Latin, scire, 'to know,' at the writing of the Constitution meant learning in general." (italics in original)). 8. If copiers were not restrained, the price of the work would be forced by competition to the level of marginal cost, which would not permit the author to recoup the initial investment in creating the work. William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STuD. 325, 326 (1989). 9. This point has been forcefully argued by Jessica Litman. See, e.g., Jessica Litman, The 2006] CONSUMER MODIFICATION OF COPYRIGHTED WORKS 853 established styles, and familiar subject matter; factual works benefit from existing research; works of scholarship and criticism, to the extent they refer to some prior work, often reproduce a portion of that work in order to make their point.'0 If the law allowed authors to prevent such uses of their work, the harm would be immeasurable. The tension between the needs of earlierauthors and subsequent authors,each of which must be respected to achieve the constitutional objectives of copyright," 1can be identified as the source of much that is fundamental in copyright doctrine. An infringing work need not be identical, but must be "substantially similar," to the copyrighted work.12 Independent creation is a complete defense, no matter how similar 3 a new work may be to an existing one.' Authors can borrow facts and "ideas" from14 earlier works, but only if those facts and ideas are clothed in new "expression.' Authors cannot object to the "fair use" of their copyrighted works by subsequent authors for purposes such as criticism, scholarship, and commentary. 15 The rights of consumers are comparatively upstaged. 16 Certain property rights flow from the ownership of a physical copy of a copyrighted work, such as the right to sell, lend, or otherwise dispose of that copy. 17 But little has been