Law in the Internet Society
-- PaigePavone - 24 Dec 2014

Charging for Creativity: the U.S. Copyright Office’s Definition of “One”

by Paige Pavone

The U.S. Copyright Office charges a fee for the registration of artistic works. Beyond the ethics of whether such a fee, or even such a registration, should be permitted, I would like to address how the Copyright Office defines “one work” for the purpose of charging that fee and allowing that registration.

The U.S. Copyright Office has a simplified application process for creators – necessary given how artists are not always lawyers, and wading through complicated paperwork would be prohibitive of their desire to register copyrights for their creations. The Copyright Office qualifies works for this simplified application process (called the Single Application) if they meet the following definition:

“one work by a single author (not made for hire) who is also the sole owner of all rights in the work (i.e., no rights may have been transferred to another person or entity).”

This may appear to be a benign and all-inclusive definition, but it is not. The term “one” is defined in a way to exclude many forms of experimental creation.

“One work” is defined as “one” of a variety of works – such as one novel, one song, one movie, one drawing. This is a very restrictive standard. Songs, for example, that are packaged as a single song, but include a hymn section and a revival section with different melodies – as many upbeat religious songs would, would not qualify for the Single Application. Technically, neither would a novel that includes original poems as epigraphs. Nor would a live action movie that breaks into a character’s unrelated animated dream sequence. Nor would any work of art embedded with a distinct creative idea.

If a work fails to meet the definition of “one work,” the creator is not prohibited from registering it, of course, but a higher fee is imposed. (Rather than a $35 fee for a Single Application, a $55 fee for a Regular Application is applied.) This looks a lot like penalizing fanciful expression. Copyrights are legally justified for a supposed ability to incentivize creation, but this heightened fee for fanciful expression logically disincentivizes the creation of more complicated works. Economically speaking, this fee divergence seems unnecessary. How complicated the work is does not bear on the cost of resources to maintain a record of registration. If the Copyright Office were to charge for the amount of shelf space or data that a registration requires, then that would be a fee directly resulting from the true service it is are providing – this is not. If the higher cost stems from evaluating the work, then equalize all fees so as not to penalize more fanciful creators, yet still maintaining overall revenue.

Under this method, too, the U.S. Government is selling a creator his/her own copyright based on its evaluation of how to categorize a creation. Why should the U.S. Government determine what constitutes a single work? Wouldn’t that be best left to the judgment of the creator, who knows his/her own intent in creating the work. Perhaps the hymn and the revival sections of the created song are absolutely necessary to form one work. If the Copyright Office fears creators will group all of their creations into one Single Application, then those creators must not feel such a strong need to have copyright protection. In a hypothetical subsequent lawsuit for copyright infringement, the defendant could argue that the infringed work was de minimus, since it is really part of a huge single work. Or perhaps this is really what the Copyright Office fears – that creators will disregard the importance of copyrighting altogether.

Let’s examine the logical evolution of the Copyright Office’s policy. If it can charge based on the arbitrary definition of “one,” why not charge for how many notes are in a song? (E.g., Beethoven pays more to register his copyright than Paul McCartney? ) Or how many colors in a painting? (E.g., Kandinsky pays more to register his copyright than Clyfford Still) Or how many letters in a novel? (E.g. Tolstoy pays more to register his copyright than Oscar Wilde) Making these distinctions and charging accordingly feels more like the U.S. Copyright Office is selling copyrights and not merely the registration of copyrights. Subjectively or arbitrarily dividing the pie of someone else’s creative work and putting a price on that division, effectively “packages” and sells it – which would be, in a word, unconstitutional.

The Copyright Office and its policies must be carefully monitored given how extreme the rules are preventing the free-flow and sharing of ideas as a result of its existence. Any policy it has that further restricts uninhibited creation, or benefits corporations (due to cost), or, as in this case, defines what a work is such that the definition of a work cannot be challenged by work – leaving us with the same standard creations: a song will always have one consistent melody, two verses, and one chorus; a painting will always be on a square piece of canvas; a book will always read line by line. Anything that reflects on what the work is or can be, should not be defined by the Copyright Office – and the definition of “one” and the definition of “work” pigeonholes creation. But what’s the big deal, really? Creators may still break free of this box (aka true art), they just have to pay more for their creativity.

It would be useful, I think, to explain to the reader that registration is not necessary for copyright. Under the Copyright Act of 1976, all works created after January 1, 1978, are "born copyrighted." Under the precedent copyright statute in the US, that of 1911, registration was normatively required for copyright, which contravenes the Berne Convention.

The US has not completely eliminated the legal significance of registration. If one means to enforce a copyright, non-registration will have significant procedural consequences, so before suing, copyright holders will want to register.

These points expressed, the reader might wonder whether your argument is quite so trenchant. Because no creator need register to hold copyright, why is the fee important? Because registration is necessary, as opposed to advisable, only under circumstances likely to involve professionals, why is self-registration important at all, or the qualifications for using one form over another? Why, given that state-created monopolies are involved, should the public subsidize the grantee's monopoly to any extent, particularly where state registration is a secondary service, not directly required in the first place?


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r2 - 04 Jan 2015 - 20:26:38 - EbenMoglen
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