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SHAKESPEARE David Kluft Shakespeare and copyright: Five things you should know In celebration of Shakespeare400, the apogee of a worldwide celebration of Shakespeare’s life on the 400th anniversary of his death, here David Kluft from Foley Hoag LLP describes five things you should know about the intersection of the Bard, and copyright law. There are few aspects of Western culture not affected by William Shakespeare in one way or another, with U.S. law being no exception. Shakespeare has been cited by the United States Supreme Court alone on over 60 occasions, twice as many times as Charles Dickens, Mark Twain and Edgar Allen Poe combined. Shakespeare’s relevance regarding law goes far Résumé David Kluft David is a partner in Foley Hoag LLP’s Intellectual Property department and a member of the Trademark, <strong>Copyright</strong> and Unfair Competition group; the Business and Commercial Disputes group and the Advertising and Marketing group. David has significant experience representing and counseling clients with respect to copyright, trademark, contract and commercial disputes, and false advertising and unfair competition. In addition to representing clients in state and federal trial courts, David’s practice also includes substantial appellate work. He has successfully argued before the U.S. Court of Appeals for the First Circuit and the Massachusetts Supreme Judicial Court. David is a contributing author to the Massachusetts Continuing Legal Education Appellate Practice series, for which he writes chapters on Further Appellate Review to the Supreme Judicial Court and Petitions for Rehearing before the Appeals Court. In 2013, David was appointed by Chief Justice Rodrick Ireland to the Supreme Judicial Court’s Committee on Professional Responsibility for Clerks of the Court. He served as a Law Clerk to Justice Judith Cowin of the Supreme Judicial Court of Massachusetts (2003-2004) and has prosecuted a variety of criminal trials as a Special Assistant District Attorney in Norfolk County (2009-2010). Before joining Foley Hoag, David had more than ten years of experience as a film and television producer, film festival director and educator. He was the founding Director of the NextFrame Film and Video Festival, Program Coordinator for the Philadelphia Festival of World Cinema, and an associate producer at PBS-affiliate WHYY in Philadelphia. David earned his J.D. from Boston University School of Law, an M.F.A. in Film and Media Arts from Temple University, and a B.A. from Brown University. beyond the occasional apt quotation or analogy. Because he is the world’s foremost author, his name is arguably most often invoked in discussions about the law of authorship, namely copyright. 1. Shakespeare was not incentivized by copyright protection Shakespeare’s connection to copyright actually precedes copyright law. When London publishers and their lawyers were casting about for arguments to justify the perpetual printing monopolies that were the precursor to the 1710 Statute of Anne, they turned to Shakespeare, who quickly became the poster-child for the copyright-incentivized author. As discussed by Professor Liam O’Melinn in The Recording Industry v. James Madison, the publishers argued that copyright protection was not a recent invention by business interests, but an extension of the “timeless moral” right of an author to profit from his labor. If not for this ancient right - the publishers argued - Shakespeare never would have bothered putting pen to paper. Therefore, the argument was that it made sense to grant strong copyright protection to the business interests that stood in the place of the authors: publishers and printers. The academic assumption that Shakespeare required some kind of incentivizing intellectual property protection made the jump to American copyright law, most notably in Alfred Pollard’s 1915 work, Shakespeare’s Fight with the Pirates, and has persisted right up to the 21st century. A 1959 Harvard Law Review article asserted that “progress is promoted by granting to Shakespeare the exclusive rights in Romeo and Juliet.” However, as Professor O’Melinn put it, this “is an odd thing to say about a play that did not enjoy copyright protection; that Shakespeare himself never put into book form; and that was copied and printed shortly after his death without payment to his estate.” Therefore, “whatever Romeo and Juliet may show about the need for copyright law, it does not support the incentive argument.” 30 THE COPYRIGHT LAWYER CTC Legal Media
2. Shakespeare’s ideas are not protected Shakespeare has been invoked more than any other author or artist to explain the idea/expression dichotomy in U.S. copyright law, i.e. the notion that ideas are not protected but the fixed expression of those ideas may be. The great Second Circuit Judge Learned Hand (in a decision joined by his cousin Augustus Hand) ignited this discussion in his 1930 opinion in Nichols v. Universal Pictures Corp., a case brought by the author of the 1922 play, Abie’s Irish Rose, against the author of the 1926 film, The Cohens v. The Kellys. The works differed from each other in many details, but both told the story of the racial antagonism between an Irish family and a Jewish family whose children fall in love with each other and are secretly married. In one of the most eloquent opinions about the fair use doctrine ever written, Judge Hand acknowledged that copyright law must extend beyond the literal copying of a play in order to be effective, but it must not overreach and purport to protect “the most general statement of what the play is about.” This idea/expression dichotomy applied not only to the plot, but also to individual characters. As Judge Hand opined (nearly three decades before West Side Story): “If 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. These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. 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.” Judge Hand acknowledged a gray area in which “nobody has ever been able to fix that boundary” between idea and expression, but fortunately for the defendant this case did not reside in the gray area. Judge Hand wrote: We have no question on which side of the line this case falls. 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. Burton and Liz Taylor, directed by Franco Zeffirelli, and giving extra emphasis to two scenes that occur off-stage in the play. The defendants, without crediting or compensating the plaintiff, took this idea and ran with it. The result was the 1967 Academy Award-nominated adaption of The Taming of the Shrew. The Superior Court of Los Angeles granted summary judgment against the plaintiff, but the California Appeals Court reversed, holding that even such conspicuously commonplace ideas could be protectable and compensable if the circumstances gave rise to an implied contractual obligation to pay for them. 4. Shakespeare having writer’s block is not a “Scénes à Faire” In the 1999 case of Miller v. Miramax, two authors brought a copyright infringement claim against the makers of Shakespeare in Love. The authors alleged that the film infringed their screenplay, The Dark Lady, which was also “about William Shakespeare writing a new play and falling in love.” The defendants argued that the similarities between the works were mere scénes à faire. In other words, they were elements so typical of, or absolutely necessary to, the genre that they were not original enough to be subject to copyright protection (for example, a gladiator fight in a book about ancient Rome, or an Italian mother character in a mafia film). On the defendants’ motion for summary judgment, the Central District of California agreed that certain historical characters and locations were indeed scénes à faire in any work about Shakespeare. However, the Court was also troubled by the many creative choices that appeared in both works, and that each were neither necessary to, nor necessarily typical of, depictions of Shakespeare. Both works feature Shakespeare suffering from writer’s block while under pressure to write a new play; burning the manuscript in frustration, meeting a literate noble woman who knows his work by heart; having an affair with her and being inspired by her to overcome his writer’s block; and watching her star in the new play and then having his heart break as she escapes to the New World. In other words, there were enough similarities in protected expression to survive summary judgment. Thus, Shakespeare having writer’s block might not be the most original idea in the world, but neither is it an archetype of the genre. The case settled before trial. SHAKESPEARE 3. Your ideas about Shakespeare, on the other hand, may be protected Even though Shakespeare is so often used to illustrate the fact that copyright law does not protect ideas, his work was also the vehicle for one of the most high-profile cases involving U.S. copyright law’s weird step-sister: the idea submission case. This doctrine was developed almost exclusively in California and almost exclusively within the confines of the entertainment industry. Ideas are not protected by U.S. copyright law, but nevertheless they can be the subject of a contract, so the California Courts have developed this quasi-contract cause of action in order to protect the “rights of an idea discloser to recover damages from an idea recipient under an express or implied contract to pay for the idea in event the idea recipient uses such idea after disclosure is discussed.” So, for example, if you put your ideas up on your webpage, or shout them out the window as you drive past MGM studios, this cause of action isn’t going to help you. But, if you set up a meeting through an agent to discuss an idea, in circumstances under which others have been paid for ideas in the past, you may be able to state a claim. In Blaustein v. Burton, the plaintiff, a Hollywood Story editor, had a series of meetings with the agent of actor Richard Burton. During these meetings, the plaintiff shared a rather pedestrian idea, which was to make a film based on a particular Shakespeare play, starring 5. Shakespeare was an inveterate plagiarist So frequently has Shakespeare been trotted out as the example of an author whose work needs copyright protection that it’s easy to forget that his contemporaries covered up their laptop screens when Shakespeare walked into the Stratford Starbucks. Some argue that Shakespeare’s success was so dependent on stuff he stole from others that even half-decent copyright protection would have ended his career rather quickly. Fellow author Robert Greene accused Shakespeare of being a rank plagiarist or, in his words, an “upstart crow, beautified with our feathers.” Greene has been conclusively drubbed by Shakespeare in the battle for historical relevance, but perhaps he can take comfort in two things. First, Greene might be happy to know that the earliest mention of Shakespeare in a published U.S. copyright case was principally as a plagiarist, not as a creator. In his 1845 opinion in Emerson v. Davies, Massachusetts Justice Joseph Story used Shakespeare to illustrate that copyright law protects not only authors who create works from scratch, but also authors who compile and arrange components taken from elsewhere. This included Shakespeare, who “gathered much from the abundant stores of current knowledge” in his day. Second, Greene may have been happy to learn that, 400 years later, when the BBC needed a title for its sitcom about Shakespeare (premiering in 2016 and starring the brilliant David Mitchell…no, wait; the other brilliant David Mitchell), it chose The Upstart Crow. CTC Legal Media THE COPYRIGHT LAWYER 31
Page 1: Copyright May 2016 NEW The GLOBAL R
Page 4 and 5: Contents May 2016 6 Meet the editor
Page 6 and 7: MEET THE EDITORIAL BOARD Giulia Cel
Page 8 and 9: NEWS A tribute to Prince and his co
Page 10 and 11: EU LAWS venue of the judicial proce
Page 12 and 13: 3D PRINTING Luis Schmidt What paten
Page 14 and 15: INFRINGEMENT Margaret Briffa Don’
Page 16 and 17: BIG DATA Does Big Data mean big cop
Page 18 and 19: ROMANIA Alina Tugearu Plagiarism tu
Page 21 and 22: Kitty Rosser Copyright update: Revo
Page 23 and 24: COPYRIGHT PROTECTION The current po
Page 25: the effective judgments of the prec
Page 28 and 29: FAIR USE Since Campbell, the transf
Page 32 and 33: 3D PRINTING Victor Johnson 3D print
Page 34 and 35: DIGITAL COPYRIGHT LAW Geert Somers
Page 37 and 38: William Miles Margaret Briffa Find
Page 39 and 40: 9. What proportion of a work must b
Page 41: IT REALLY MATTERS WHICH IP FIRM YOU

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