The Routledge Companion to Copyright and Creativity in the 21st Century

Cover
Half Title
Title Page
Copyright Page
Dedication
Table of Contents
Preface
Acknowledgments
List of Contributors
Part I: Copyright Basics
	1.1 Copyright Basics: What You Think You Know May Not Be True
		Legal Systems
		Copyright is Federal Law
		Copyright Protects Creative Expression
		Joint Copyright
		Work Made for Hire
		Copyright Holders’ Rights
		Registration
		Infringement
		Fair Use
		Digital Millennium Copyright Act
		Termination Rights
		Moral Rights
		Visual Artists Rights Act
		Works Integrated into Buildings
Part II: Literary Works
	Introduction
	2.1 Piracy of Books in the Digital Age
		Piracy in the Digital Age
		How Does the Law Combat Online Piracy?
		Suggested Changes to Better Combat Online Piracy
		Conclusion
	2.2 Is a Picture Really Worth More Than a Thousand Words? (The Scope of Copyright Protection for Fictional Characters)
		Overview of Existing Law
		What, If Any, Protection Should Be Available for Fictional Characters?
	2.3 Fair Use: The Judicial Mix-Up over “A Mixed Question of Law and Fact”
		Nineteenth-Century Roots of Misunderstanding “Mixed Questions”
		Fixing the “Mixed”: Contemporary Supreme Court Approaches
		Do Not “Shy Away”
		Conclusion
		Acknowledgment
	2.4 Fair Use: The Linchpin to the Future of the Copyright Act
		Another Way to Advise Clients and Predict Results
		Parody
		Conclusion
	2.5 Self-Publishing Revolution: Copyright Pitfalls for Writers Who Go It Alone
		Protecting Creative Content
		Avoiding Lawsuits: Do Not Infringe Someone Else’s Copyright
		Collaborating without Clearly Defined Expectations
		Contracts, Agreements, Letter Agreements— Whatever You Call Them, They are Necessary!
	2.6 Landmark Case: Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)
Part III: Visual Arts Introduction
	Introduction
	3.1 How Close Can You Get: Substantial Similarity in the Context of Works of Visual Art
		Photography
		Paintings and Drawings
		Textiles
		Sculptural Works
		Conclusion
		Acknowledgment
	3.2 Gorgeous Photograph, Limited Copyright
		1884: Photographs Are Copyrightable (Sometimes)
		Limited, but Meaningful Copyright Protection
		What Does this Mean in Terms of Modern Practices?
		Photographs and Fair Use Claims
		Conclusion
	3.3 Copyright Concerns for Visual Journalists
		Monkey Selfies and Drones
		Fair Use
		Registration and Implied Copyright
		Conclusion
	3.4 Social Media: Use It and Lose It?
		To Post or Not to Post: That is the (First) Question
		Pre-Posting Protections: What Can You Do to Protect the Work You Created?
		Posting on Social Media: The Terms of Service (TOS) May Determine Your Rights in Any Posted Content
		Your Works Have Been Pirated: What Can You Do to Pursue Your Rights and Be Compensated?
		Do the Infringers Have to Pay Your Legal Fees If You Win?
		What is the Answer under Current Law to the Question: “ Social Media: Use It and Lose It?”
	3.5 Landmark Case: Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018)
		Sinclair v. Ziff Davis, LLC, No. 18-CV-790 (KMW), 2020 WL 1847841 (S.D.N.Y. Apr. 13, 2020)
Part IV: Fine Art
	Introduction
	4.1 The Art Collector’s Burden: Guiding a Collection through the Thicket of Copyright Laws
		Introduction
		Copyright Ownership
		Copyright Infringement and Fair Use
		Moral Rights
		Conclusion
		Acknowledgment
	4.2 Protection of Street Art: Has VARA Finally Found Its Métier?
		The Nature of Street Art
		The Nature of Moral Rights
		Works Protected by VARA
		Rights Provided by VARA
		Is VARA Effective in Protecting Art and Artists?
		The Emergence of Urban Murals
		Urban Murals Legitimized in the 5Pointz Litigation
		The Impact of the 5Pointz Case
	4.3 Appropriation Art: Creating by Taking
		Introduction
		Background on Fair Use Analysis
		The Concept of Transformativeness
		Problems with Transformativeness as Applied to Appropriation Art
		Restoring Meaning to All Four Fair Use Factors by Not Focusing Exclusively on Transformativeness
		Conclusion
	4.4 Appropriation Art: Creating by Using
	4.5 Authorship and Authenticity: Banksy
	4.6 Landmark Case: Mass. Museum of Contemporary Art Found., Inc. v. Buchel, 593 F.3d 38 (1st Cir. 2010)
		Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)
Part V: Music
	Introduction
	5.1 A Remix Compulsory Licensing Regime for Music Mashups
		Introduction
		Music Mashup Culture
		Copyright General Framework
		Rap/Hip-Hop’s Rocky Road to Constrained Copyright Legitimacy
		Bridging the Divide: The Case for a Remix Compulsory License
		The “Cover” License as a Model for Opening up the Remix Marketplace
		Designing a Remix Compulsory License
		Eligibility Requirements
		Revenue Sharing
		Administrative Process
		Additional Features and Limitations
		Possible Extensions
		Additional Benefits of a Remix Compulsory License
		Objections and Responses
		Fair Use
		Moral Rights
		Bridging Fair Use’s Binary Divide
		Conclusion
		Acknowledgment
	5.2 Sampling: Using Recordings as Musical Instruments
	5.3 Subconscious Copying: From George Harrison to Sam Smith, a Song Gets in Your Head and Winds Up in a New Song
	5.4 Why Music Should Not Be Free: The Battle for Survival
	5.5 Music, Deposit Copies, and Unanswered Questions after Skidmore v. Led Zeppelin
		Introduction
		Registration Questions
		Ownership and Damages Questions
		Conclusion
		Acknowledgment
	5.6 Co-Authorship: A Little Help Can Lead to a Big Headache
	5.7 Landmark Case: Williams v. Gaye, 895 F.3d 1130 (9th Cir. 2018)
Part VI: Video Games and Virtual Worlds
	Introduction
	6.1 Video Games and Virtual Worlds: Recreating the World and Fighting a Dragon in it
		Challenges Depicting Reality: People
		History of Right of Publicity Cases in Games
		Tattoo Cases
		Emote Dance Cases
		Right of Publicity and Esports
		Challenges Depicting Reality: Buildings
		Challenges in Depicting Reality: Vehicles
		Conclusion
	6.2 Virtual Property and Virtual Currency
		Introduction
		Property Rights
		Regulations
		Terms of Use/Terms of Service
		Compare: Tools
		Conclusion
	6.3 Press “X” To Open: Pandora’s Loot Box
		Gambling Law in the US: A General Overview
		Loot Boxes: Are They Gambling?
		The Global Perspective
		Conclusion
	6.4 Landmark Case: Hart v. Elec. Arts, Inc., 717 F.3d 141 (3d Cir. 2013)
Part VII: Fashion
	7.1 Buyer Beware: Copyright Issues in the Fashion Industry
	7.2 Hermes in Hermès: Searching for Boundaries in Non-Traditional Trademarks and Copyrights
		Hermes and Hermès: Not So Simple
		The Twentieth-Century Fashion Industry in the US
		Today’s Fashion Industry and Piracy
		Copyright Protection for Fashion Designs
		History of Legislative Attempts to Protect Fashion Designs
		An Alternative to Copyright: Trademark and Trade Dress
	7.3 Idea/Expression Dichotomy: If the Belt Buckle Fits, You Can Copy It
	7.4 Landmark Case: Star Athletica, LLC, v. Varsity Brands, Inc., 137 S.Ct. 1002 (2017)
Part VIII: Technology
	8.1 The DMCA Safe Harbor: User-Generated Content
		The Takedown Notice
		The Counter-notification
		Repeat Infringers
		Misrepresentations
		Criticisms of the DMCA
		Conclusion
	8.2 The DMCA Safe Harbor: Policy and Practice Divided
		A Brief Primer on the DMCA Safe Harbor
		Notice and Takedown in Practice
		The Perpetual Takedown-Repost Cycle
		Internet Platforms’ Responsiveness and Extra-Statutory Review Standards
		No Viable Recourse for Invalid Counter-Notices
		Fixing the System
		Parting Thoughts
	8.3 Copyright Trolls: When Copyright Litigation Becomes a Business Model
		Setting Boundaries
		“A Troll is Born”
		Statutory Damages and Too Many Mouths to Feed
		Representative Cases
		What Can Be Done?
		Conclusion
		Acknowledgment
	8.4 Virtual Reality: Blending the Real World with Copying
		Introduction
		What is AI Technology, and How Does It Work?
		Copyright Law’s Authorship Requirement
		Conclusion: Copyright Law is Built to Adapt to New Technologies
	8.5 Artificial Intelligence and the Future of Literary Works
		Introduction
		Artificial Intelligence Defined
		AI and Authorship
		Are Expressive Works Created by or with the Assistance of AI Copyrightable, and if so, Who is the Author and/or Copyright Owner of Such Works?
		Who Is Responsible When an AI Machine Infringes?
		Is It Always Fair Use to Train AI Machines by Ingesting Large Volumes of Works?
	8.6 Landmark Cases: Perfect 10, Inc. v Amazon, Inc., 508 F.3d 1146 (9th Cir. 2007)
		Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018)
Part IX: Future Copyright
	9.1 Future of Copyright
		Fair Use
		Section 512 Review
		Sharing Content
		CASE Act
		Termination
		AI and Machine-Assisted Creation
		The Music Modernization Act
		Modernization
	9.2 What’s Next: Predictions from Interviewees and Authors
Index