The Author The Fan and The In-Between in Search of A Copyright Regime For The Everyday Creative

The author, the fan and the in-between: in search of a..., E.I.P.R. 2018, 40(12),...
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The author, the fan and the in-between: in search of a copyright
regime for the everyday creative
Katerina Sharkova *
Journal Article
European Intellectual Property Review
E.I.P.R. 2018, 40(12), 784-796
Subject
Intellectual property
Other related subjects

Information technology
Keywords
Copyright; Derivative works; Digital technology; Infringement; Innovation; Reproduction right; United States
*E.I.P.R. 784 This article will analyse the legal and business status quo facing the main players
within the creative industries—creators, distributors, consumers and those operating within the
grey areas of these categories. It will discuss the possibility of new legal frameworks and
novel conceptions of existing law which encourage creativity and better address trends of active
interaction with protected creative works.
Introduction
We operate in a world of cumulative knowledge and creativity. 1 Concepts of novelty and
innovation are understood in the context of what came before. They are unapologetically assumed
to build upon past discoveries, philosophies and even influentially phrased observations of natural
phenomena. Whether a recorded novelty arises in a realm capable of industrial application or in
that of the creative sphere, an attribution to what came before is expected and rarely withheld. 2 But
the political, philosophical and business expectations which have developed around innovations,
distinctive badges of origin and, in the case of copyright, original expressions, have moved far
beyond an academic convention of citation and acknowledgment. 3 Within the creative sphere,
copyright has carved out a niche of relevance as an invaluable business tool delineating the rights,
permissible activities and modes of commercialisation available to the three main players of the
creative industry—a work’s creators, its distributors and its consumers.
Copyright law may well have emerged from the technology-based litigation of the last few decades
with renewed vigour, entering a much changed creative industries landscape. This was not always
a certainty. The self-declared "independence" of the internet as a place within which information
flowed free 4 contributed to the upheaval of many creative spheres, most notably the music
© 2023 Thomson Reuters. 1

industry. In his bestselling book, Free Ride, 5 Robert Levine bemoaned the propensity of online
media empires which devalued familiar journalism through tactics focusing on aggregation and
regurgitation over the creation of new content. But the end of originality has not yet come to
pass. YouTube and Netflix now produce their own content, successful examples of new media
organisations which, though initially focused on distribution, have joined the lucrative market 6
of branded and officially licensed original creative content. Whether the new model of music
distribution follows suit, perhaps in the form of Spotify-sponsored original artists, is as yet
uncertain. However, there has been a marked trend of business models—of a similar type to
those on the defensive during the Napster litigation 7 —which are moving towards building
their own copyright-protected intellectual property portfolios, beyond their brand and goodwill as
distributors.
A related phenomenon of technological development has been the rise of active consumption
of media. Follow-on creativity and long-term fan engagement have taken the place of the more
"read only" tendencies of all but a minority of 20th century consumers. The very status of this
read/write culture 8 has also developed. The profitability and business benefits of active follow-
on consumption by fans and more casual consumers are increasingly welcomed and legitimised
by right holders. It could be argued that this warmer attitude to fan additions to protected works
is superficial—a truce arising from limited authorial acceptance 9 and subsequent changes in
business models rather than a utilisation of existing copyright law exceptions by empowered users
and remixers of protected content. But whether copyright law was involved or not, the three central
players regulated by this legal doctrine have reassembled their relationship. *E.I.P.R. 785
An older, simplified framing of the relationship between right holders and fans could be illustrated
by the popular image of a conservative right holder who leaves a work to stagnate while dedicated
fans attempt to give it a new, creative lease on life. An example is the mishandling of the Star
Trek fan base, 10 wherein right owners repeatedly attempted to police and monetise fan interaction,
pursuing their own audience through several online platforms in hopes of gaining control (while
authors watched from the side-lines). The modern model differs somewhat. In an age of big
franchises, where the value of an established name, celebrity or even tune is palpably recognised,
both content owners and fans alike tend toward secondary creation, derivative works and remix
of that which has established success and cultural relevance. The conflict, therefore, turns more
and more on the matter of commercialisation than the mere control of the act of making secondary
works based on protected expressions. Fans and owners are moving towards opposing poles. Both
show an understanding that culture converges and has value and applicability in its transformation
across mediums. Fans are becoming familiar with and entitled to this culture, while owners move
towards control and safeguarding of business potential.
In this article, I will assess the business and legal status quo of the relationships between creators,
right holders and consumers as they pertain to the creative industries, analysing the impact of
secondary creative works made by fans and consumers with particular reference to two major
common law jurisdictions—the UK and the US.

Definitions and stakeholders
Creators and entrepreneurs—the right holder perspective

The stakeholders of an original protected work may include the work’s creators as well as other
pertinent right holders, such as publishers and producers, who obtain rights through contractual
means, usually at a time subsequent to creation. 11
As per art.2(1) of the Berne Convention, to which both the US and UK are signatories, copyright
protects "literary and artistic works", "whatever … the mode or form of … expression". 12 The
UK has a history of requiring specific forms of expression in order for protection to apply. This is
commonly known as a closed system. Under the current UK statute, copyright subsists in:
(a) original literary, dramatic, musical or artistic works;
(b) sound recordings, films or broadcasts; and
(c) the typographical arrangement of published editions. 13

While the closed system provides an enhanced level of legal certainty, it can be argued that it can
lead to limitations in the scope of protected works. The UK system, under the force of European
and international sway, 14 seems to be parting ways with its tradition, moving towards the Berne
test as the single threshold for protectable subject-matter. 15 The complexities of the debate will
remain outside of the scope of this article, as much of remix culture and follow-on creativity utilises
precisely the types of work noted in the statute. Nevertheless, it is useful to note that there is a
trend towards the loosening of the subject-matter requirement, even in the UK. This, alongside
the low threshold of originality required for copyright protection, betokens a potential widening
of the types of works which the law, general society and the creative industries, are willing to
conceptualise as worthy of protection. This could have great significance for remix culture in years
to come.
The rights involved

The interests of the copyright owner have a solid legal foundation. Article 13 of the TRIPS
Agreement, to which both the US and UK are signatories, requires that:
"Members shall confine limitations or exceptions to exclusive rights to certain special cases which
do not conflict with a normal exploitation of the work and do not unreasonably prejudice the
legitimate interests of the right holder."
A WTO case has provided some clarity on the interpretation of this passage, qualifying that every
requirement must be fulfilled in order for a limitation or exception to apply. 16 The case also

elucidates the meaning of "normal exploitation of the work". Despite the vague wording, the WTO
Panel does not grant leeway for the requirement to be interpreted in the context of the variable
meaning of "normal exploitation" as it fluctuates in time and between cultures. Instead, it is made
clear that the provision concerns "economic rights" and any limitations or exceptions will not be
permissible if they cause "unreasonable loss of income to the copyright holder". 17
While there are few copyright law cases which obliquely concern user-generated content and other
follow-on creativity, a cursory examination of most *E.I.P.R. 786 current practices is likely to
yield a good case that they infringe both the economic rights of a copyright holder and, in the case
of the UK, the moral rights of authors. 18 Moral rights, as they exist within the US and UK, are
reserved only for authors, but economic rights are, in theory, shared by authors and subsequent
right holders alike—be they managers, distributors or entrepreneurs entrusted with the copyright
following an agreement with a work’s original creator. Indeed, any lobbying efforts to increase
or defend the extent of copyright protection seem to rely heavily on referencing the economic
interests of the author, particularly those relating to their incentive to create. 19 These economic
rights can be characterised as a bundle of rights which produce something of a limited monopoly,
guaranteeing that "[n]o one else may for a season reap what the copyright owner has sown". 20
The right of reproduction

The right of reproduction is arguably the most historically entrenched of the economic rights. By
virtue of its status as a "right to copy", it is also perhaps most easily associated with the copyright
doctrine. As per the wording of the Berne Convention, "[a]uthors of literary and artistic works …
shall have the exclusive right of authorising the reproduction of these works, in any manner or
form", 21 though it is left up to signatories whether to provide legislative exceptions
"in certain special cases, provided that … reproduction does not conflict with a normal exploitation
of the work and does not unreasonably prejudice the legitimate interests of the author". 22
The right of reproduction, in its current form, is implemented in the US by the Copyright Act of
1976 23 and in the UK by art.16(1)(a) of the Copyright, Designs and Patents Act 1988 . 24
In both the UK and US it is generally an infringement to copy a "substantial part" of a copyright

protected work. 25 Aside from more obvious cases of direct reproduction, infringement may also
arise from non-literal copying, 26 though in the UK this is still somewhat contentious, particularly
with regard to recent EU software decisions. 27
Whether or not infringement is found hinges not only on an examination of what has been copied
but on an analysis of the market effect of such a taking. 28 In fact, the question of whether a
substantial similarity exists is often inextricable from the market analysis. A frequently cited case

for this proposition in the UK is Weatherby & Sons v International Horse Agency and Exchange
Ltd . 29 Here, the court held that the
"real and only test as to whether or not the defendants have made an unfair use of [the copyright
holder’s work] lies in the answer to the question [of] whether there will be any competition between
such volume and the defendant’s book". 30
The US Ninth Circuit has noted that a work will be substantially similar in cases where an
"ordinary, reasonable audience would find the works substantially similar in total concept and
feel". 31
This focus on the existence of a competitive market relationship between the original and
potentially infringing work appears to make the right of reproduction ill suited to the control
of works residing outside of the obvious market and the work’s already established audience
demographic. Courts have gone so far as to require the similarity analysis be confined to what
the typical members of the work’s audience would perceive — an analysis based on their average
age and profile. 32
The derivative work or adaptation right

More differences arise between our jurisdictions in the case of the US derivative work right 33
and the UK adaptation right. 34 The rights are similar in conception, offering the right holder
some limited control over their work’s appearance in markets outside those which were originally
anticipated. In this sense, the rights go beyond what is provided by the right of reproduction. They
affect works which "add new expressive elements and serve markets that differ from the market
in which the original was first introduced". 35 The market limitations of the right *E.I.P.R. 787
of reproduction do not in any way make it unserviceable as a tool against user-generated content,
remix and follow-on creativity—a generous market competition analysis could easily place two
seemingly different markets in competition, such as a non-fiction guide with that of the work it is
informing on. 36 Nevertheless, the derivative work and adaptation rights are a useful expansion,
and mean that the control of the right holder can stretch without recourse to laboured arguments
of economic loss and competition. 37 Right holders of dramatic works will receive the exclusive
right to translate the work into literary form or even a conceptual musical album, as well as the
ability to control the attempts of other, unlicensed, parties to do so.
Our jurisdictions differ in their approach to what types of derivative works or adaptations are
capable of being controlled. The US has no limitations on the definition of potential derivative
works, whereas the UK statute specifically delineates the form a secondary work must take in order
to legally constitute an adaptation of the original work. 38 This limitation means that the adaptation
right is unlikely to be able to control uses such as those which were the subject of the Worlds of
Wonder cases, 39 heard across several states in the US. The cases concerned a toy teddy bear which

utilised cassette tape recordings to create the illusion of movement, speaking and storytelling. The
allegedly infringing activities included the production of new cassette tapes which allowed an
expansion of the bear’s repertoire through the performance of popular fairy tales already in the
public domain. Despite the activity being little more than a continuation, and arguable betterment,
of a product whose purchase was required before the secondary work could apply, the court found
substantial similarity. The finding was on the basis of similarities in the movement of the bear, the
voices recorded on the tapes and other audio signals which indicated breaks in the speech.
It is worth noting that any elements in a lawfully created derivative work or adaptation which
hold a "distinguishable variation" from the original underlying work are likely to acquire separate
copyright protection. 40 This means that the rights, particularly the marginally more powerful
derivative work right, have the potential to be used as a method of extending copyright protection
in certain creative works, such as fictional characters, which are difficult to extricate completely
from elements whose copyright term may have passed. 41
The right to communicate to the public

Communication is key for all stakeholders of the creative industries, both in terms of its
commercial potential and the very practical need of creative works to be seen, heard or read. The
right, enshrined in art.8 of the WIPO Copyright Treaty, provides "authors of literary and artistic
works" with the "exclusive right of authorising any communication to the public of their works".
42
The importance of the right, in our current landscape of technological development, can be
illustrated through a hypothetical example utilising the facts of the Worlds of Wonder cases
mentioned above. With the increasing prominence of the internet as a form of distribution and
communication, it can be easy to forget that, rather than providing a window through which an
original work can be accessed, it is in fact built upon the process of copying. While the decision of
the Worlds of Wonder cases seem egregious from a UK adaptation right perspective, if the scenario
is transferred to a digital landscape it is very likely that UK copyright law will be triggered, even
in the case of changes designed to merely enhance the original, legally purchased product. This
is because, even if consumers have purchased the original "digital" bear, accessing the enhanced
version online or technologically is likely to result in an unauthorised communication of the altered
version of the bear.
Owing to the importance of internet transmission, the "means of reproduction, distribution and
public performance … have been merged into a single act of digital transmission". 43 It remains
to be seen whether the duplicate nature of these rights will lead to reform towards a leaner regime
or whether the additional rights will remain as crucial tools which bolster a right holder’s case and
complement their existing arsenal.

The rights in commercial practice

The commercial reality in the US and UK is that most rights are quickly relinquished by the
author, sold for lump sums or guarantees of management, promotion or distribution by producers
and publishing bodies. The latter organisations are then left to manage the work, largely as they
see fit, leveraging its potential value over the course of its full term of protection. 44 Following
recent expansion, this term has now reached 70 years following the death of the work’s author(s).
Considering the frequent practice of authors to abandon their long-term rights, it is interesting that
the law is framed so cogently around their lifespan. William Cornish notes that the "contrasting
*E.I.P.R. 788 interests of entrepreneur and creator can strike one as exaggerated to the level of
the grotesque", 45 and yet the rights have remained tethered to the identity of the author. I stipulate
that this is linked to an enduring interest in the identity of individual creators, an interest which
exists even in the Anglo-American tradition. Once a creator has breached the public consciousness,
their fellow right holders saddle them with the responsibility of playing a "quasi-public role as
protector of the universe" 46 in the name of strengthening the commercial value of the work and
its potential derivatives.
This is not to say that the same process cannot occur in the absence of an author. While copyright
law is indeed disproportionally phrased in relation to the author figure, for works which are at a
later development of the franchising and remix process (and already alienated from their original
creator), a better strategy has been to exaggerate the originality and creative merit of the work
itself. The judge in DC v Towle 47 may be said to have succumbed to this commercial reframing,
granting protection to a "fictional, high-tech automobile" on the grounds of its status as an original
character. The protectable elements the judge referenced, though many in quantity, all amounted
to generic, and variable, "characteristics" such as "high-tech gadgets". 48 The elements’ overall
combination, however, left the judge sufficiently impressed to consider even individual elements
highly original and worthy of protection against a replica car which, when viewed as a whole, bore
little resemblance to the original protected work.
The majority of works which face the process of changing hands from creator to entrepreneur
are not destined for glory. Instead, they face stagnation and poor marketing, often struggling to
find an audience. However, where runaway success occurs—often unexpectedly—right holders
will seek to monetise on the cult of personality surrounding the creator, utilising copyright as a
means through which to cash in on existing works, as well as consumer interest in future "potential
consumption experiences". 49 These works do not have to be of the same type or even genre of
the original protected work. They can be a theme ride accompanying a novel or film, or a theatre
production loosely derived from a childhood series. It is through the rights outlined in this section,
along with surrounding legal tools increasingly encroaching upon the ambit of creative works, 50
that right holders seek to reserve commercial remix culture for themselves, creating a separate
lucrative channel of profitability.

Secondary creativity
The parties that participate in follow-on creativity originating from protected works are a diverse
group. Narrowed down to those who operate within the creative industries, they encompass
those who remix, sample and mash together musical compositions; those who use protected
elements of film and literature for the purpose of parody, satire or other commentary; and those
who reassemble, remix or build upon protected elements to create new works brimming with
independently arising original elements. The format secondary works may take is equally variable
—in budget, scale and form—and prone to evolution and dips in popularity. Gifs, literary works,
dramatic performances, animation and Machinima—the practice of making film works through
the use of video game mechanics and camera capabilities rather than traditional filming methods
—are all forms of secondary creativity which enjoy varying levels of cultural, commercial and
legal legitimacy.
Remix culture does not appear to stem from a revolutionary instinct or a new trend, but rather
from a natural impulse on the part of a buyer to do what they will with their property—or of a
consumer of culture to interact with it as they see fit. 51 The instinct to participate in such activities
is not unique to copyright protected works or to the creative industries. In fact, history and more
modern trends are rife with examples of home modification and even modification intended for
further resale—from bicycle alteration to practical and stylistic innovation in shoes. 52 Aside from
a personal property analysis, follow-on creativity has a cultural, word of mouth legacy. Many
musical developments, both with regard to song writing and stylistic convention, came about
through experimentation on the live scene. The development of punk, jazz and reggae 53 owes
much of the commonplace stylistic conventions of their genres to impromptu borrowing by fans
and future musicians who took their cue from the reigning generation they were watching perform.
The instinct to innovate upon one’s property or accessed experiences is one that has been
documented in the very philosophy used to justify copyright protection of original expressions.
Locke’s theories invoke the *E.I.P.R. 789 enclosure of the freely available through one’s
transformative labour. 54 Some critics have called these theories outdated, 55 but their legacy can
still be viewed in the introduction of the European database right, 56 which transparently rewards
labour and investment over the usual originality standards associated with copyright protection.
Some secondary creative works use protected elements as mere settings or functional middleware,
a utilitarian means via which to create something completely different. Often the connection
between the secondary work and the protected elements it is built upon is completely severable.
A case study in the immense success which can follow from such a severance is easily articulated
by the success of 50 Shades of Grey, a book which started its life as a fan work of the popular
series Twilight. Owing to a quirk of the story’s genre—an alternative universe story transporting
the original characters into a non-fantasy setting reminiscent of our own reality—the author could
seamlessly discard the names and recognisable elements tying her story to the "parent" work it
owed its birth to.

Many other secondary works, despite matching or surpassing the level of originality provided by
successfully legitimised works such as 50 Shades of Grey, are not in a position to achieve severance
from the original work they built upon, remixed or transformed. As such, they are unable to realise
a fully separate legal identity and must be viewed in the context of the original protected work.
Should their independent originality and legitimacy be questioned—a likely scenario if secondary
creators seek to monetise or use their work in ways seen as threatening by right holders—such
secondary works may be placed in a variety of legal categories. Arguably the most definition-
appropriate legal class for many secondary creations is that of "derivative works"—a legal category
under US law 57 whose rough equivalent is the UK "adaptation". 58 However, a significant amount
of reproduced material from the original work will also give rise to liability for the secondary
creator under the better known, copyright-regulated practice of copying. Many secondary creative
works will therefore face threats and limitations on the basis of the amount of the original work
they have reproduced, as well as potentially falling into the legal category of a derivative work or
adaptation—a type of work right holders are uniquely entitled to produce or authorise.
Tiers of legitimacy
Both right holders in the original work and those participating in secondary creativity are known
to be a part of remix culture. This creates an interesting tier of legitimacy amid secondary
creative works. Some forms of remix culture never reach legitimacy 59 ; others begin as potentially
infringing uses but are a gateway towards legally acceptable forms of creativity, using remix
culture as a practice ground or even interview process for creative roles 60 ; others still are
legitimate from the start, whether because they are made within an industry within which licensing
for use is an already entrenched practice 61 or because the remix originated from a right holder to
begin with. The story of the rise and partial fall of Machinima is an example of what can occur
when a medium fails to reach legitimacy despite high levels of originally, popularity and exposure.
Notwithstanding the extensive originality involved in much of the production and the ease with
which a potential paying audience was found, this form of secondary works evoked large amounts
of protectable material and as such had an inherently difficult position under the law.
Limitations and exceptions
The idea/expression dichotomy

Copyright protects individual expressions of ideas, rather than the ideas themselves. 62 The idea/
expression dichotomy can serve as a great ally to remix culture, particularly when combined with
scènes à faire and the merger doctrine. The former, translating roughly to "scenes which ‘must’
be done", 63 recognises that where an idea can only be expressed through certain expressions,
these may be utilised without infringement taking place. 64 The latter doctrine recognises that
certain ideas may only be communicated via a finite set of expressions and these are therefore

left without recourse to copyright protection. 65 The arguments surrounding the US Hope Poster
case, 66 ultimately settled out of court, serve as an interesting case study of the defences the
doctrines provide. The case concerned the creation of a digital poster, utilising a photograph of
Barack Obama overlaid with a digital design. The original, unedited photograph, belonging to
the major organisation Associated Press, was used without permission to create a striking image
designed for the purpose of assisting a presidential *E.I.P.R. 790 campaign. The artist argued
that facts portrayed in the photograph were unprotected, an observation commonly acknowledged
in both US and UK law. 67 In a photograph, unprotectable "facts" consist of several visual
elements, including the face of the photographed subject as well as other features, natural to the
world, which may have been captured. 68 The artist proceeded to argue that the scènes à faire
doctrine excluded conventional ways of posing, including the three-quarter pose commonly used
to demonstrate power, utilised by the photographic subject in this case. The artists’ claims were
supported both by recent precedents in the jurisdiction 69 as well as by factual evidence supporting
the commonality of elements of the photograph, such as the pose and framing. 70 Despite a well-
supported case, utilising unadventurous interpretations of the idea/expression dichotomy and its
surrounding doctrines, it would be erroneous to suggest that the settlement resulted entirely in the
artist’s favour.
Alongside a financial settlement, which still remains confidential, as well as the substantial costs
involved in research of photography practices and norms, the settlement involved several terms
which show the artist’s arguments were unable to secure a favourable future for the utilisation
of the idea/expression dichotomy in future remix cases. While neither side surrendered its legal
position, the artist agreed not to use any of the copyright holder’s photographs in future without
first purchasing a licence. A future collaboration between the right holder and the artist, on a
further set of remixed images was planned. 71 The artist in the Hope Poster case utilised the idea/
expression dichotomy as a brief, partial shield against a finding of infringement. Rather than the
doctrine offering sustained support in continued remix activities, it was used as a stepping stone
to a legitimised business arrangement based on a licensing scheme.
Fair use and fair dealing

The main UK and US categories of copyright exceptions share similar names but very differing
scope and conceptions. The UK fair dealing regime invokes a list system, outlying very specific
exceptions for well-defined activities. While US legislation also provides a list of specific
exceptions, 72 it is the addition of its fair use approach that stands out as a "panacea", 73
theoretically capable of exempting any conceivable activity from infringement as long as certain
conditions are met.
From the point of view of those creating remix works and participating in follow-on creativity, the
list-based fair dealing system offers a clearer legal position. Those seeking to use a protected work
will know that in order to benefit from protection their activities will have to be easily characterised

as falling within one of the listed exceptions. The most pertinent of these for remix culture within
the creative industries are the exceptions granted for criticism, review and the reporting of current
events. 74 Much of what may be termed the "non-fiction" sphere of remix culture activities can be
said to fall within a loose definition of this category. According to Hart J in IPC v News Group
Newspapers Ltd a loose definition is fitting, as fair dealing is "an elusive concept". 75 Prominent
academics have weighed in that the categories "should be interpreted liberally" and no attempt
should be made to plot precise boundaries. 76 Under the current approach, UK judges are left with
much discretion to interpret. Aside from a decision on the scope of the activities invoked, the
very concept of "fair dealing" must be adopted to the facts. This can require "some subjective
consideration of what the user’s purpose was" 77 and an assessment of the fairness of it. 78 Factors
of consideration recommended by the Society of Authors 79 include a calculation of whether the
amount used was limited to what was strictly needed to achieve the goal intended. Meanwhile,
industry practice has interpreted the exception as applying differently to certain types of media,
with items such as photographs bearing more protection against fair dealing so that the livelihood
of photographers is preserved. 80 While the UK approach may seem more rigid and defined, ample
responsibility is left to the discretion of judges, much like the position in the US.
The fair use exception is the most flexible of the US exceptions and is best suited to remix and
follow-on creativity. Much like the UK fair dealing exception, it remains for the courts to decide
what constitutes a "fair" use of a protected work, but this assessment is not tethered to a closed
list of prescribed activities and can relate to any work and any activity which utilises copyright
protected works. In determining a particular use is fair, courts will look to the following factors:
1. the purpose and character of the use, including whether such use is of a commercial nature
or is for non-profit educational purposes; *E.I.P.R. 791
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as
a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. 81
The wording provides a test reminiscent of the considerations UK courts and private organisations
have come to utilise, including an examination of the idiosyncrasies and commercial reality of the
protected work as well as the amount taken. However, compared with the more piecemeal approach
in the UK, US courts are far more stringent in applying each prong of the test to the facts of a
case. 82 All of the considerations can pose a difficult threshold for many follow-on creative works.
Musical mash-ups, for example, are likely to face difficulty with the "amount and substantiality"
prong, particularly if using a small amount of songs rather than a larger selection. Music-related
copyright cases have tended toward unpredictable results, with courts often finding infringement
in songs that sound markedly different when compared side by side but share certain elements
—from hooks to grooves. 83 Considering the uncertain legal landscape with regard to disguised

or even accidental copying of small amounts by legitimised professionals, it seems unlikely that
producers of unlicensed remix works will be able to safely benefit from fair use if they go beyond
mere private activities and make their versions of the song available to the public. Even if the
activity is non-commercial, a secondary work utilising the loosely outlined protectable expressions
of a song may still be considered to be interfering with the capacity of the original right holder
to commercialise and make available through their own chosen means. If the original elements
are "groove" or "feel", and not just the value spent on creating a recording of a song, those who
replicate these elements, even non-commercially, could be participating in a more sophisticated
brand of piracy—bootlegging.
There is no requirement that a deprivation of the potential income of a copyright holder has to
occur within the exact market. In Rogers v Koons, 84 a case concerning the use of a photograph
as a template for sculptures, the court stated that the important consideration was not whether the
original artist had operated in the secondary sculpture market, or indeed considered entering it,
as long as a potential market for the original work existed. In practice, this means that any novel
use of a protected work, even within an unforeseeable market devised by the follow-on creator, is
likely to be infringement if it finds commercial demand. 85
These examples suggest that, should the creative industries choose to take an unfriendly approach
to even non-commercial creative works, the fair use exception could be turned against such
activities. The morally neutral nature of the exception makes it prone to distortions depending
on commercial trends.
Transformativeness
Transformative use of copyright protected works has the potential to dwarf the other factors of the
fair use test. Its strength when measured against other factors of the US fair use doctrine fits well
with the purported objectives of copyright law, offering "breathing space within the confines of
copyright" 86 and thus encouraging creativity.
The more transformative a work is—making "something new, with a further purpose or different
character" or infusing the original with "new expression, meaning, or message"—the more it is
allowed to take and the less important its interference to the market of the original becomes. 87
This is consistent with the importance of freedom of speech in the US, a constitutionally enshrined
right. 88 Parody, a genre that is inherently transformative, can have the potential to be ruinous to
the commercial viability of the original work it is referencing, but under the fair use analysis,
"[t]he economic effect of a parody … is not its potential to diminish the market for the original –
any bad review can have that effect – but whether it fulfils the demand for the original". 89
Matthew Sag has suggested that a "creativity shift" is likely to increase the likelihood of a fair
use finding. 90 Rather than a dimensional or genre variance between the works, this would entail

a difference in levels of creativity invoked, as between an encyclopaedia and a fictional literary

work. There is evidence that this is indeed an argument that sways the court. The marked sympathy
granted to the defendants in the Lexicon cases is an example of this. The decision was perceived
to be "very fair use friendly", with the Lexicon’s transformative purpose being fully accepted and
their fair use case failing only on the grounds of excessive copying. 91 This approach will favour
certain types of follow-on creative works over others. A serious song will have to result in a parody,
a *E.I.P.R. 792 theatre production in a documentary, a doll—being a functional plaything—in
an artistic work worthy of exhibition. 92
It can be argued that the UK has its own limited version of transformativeness, both through the
recent introduction of a copyright exception allowing the use of a protected work "for the purposes
of caricature, parody or pastiche" 93 and through the development of European case law, to which
the UK is still subject. The Intellectual Property Office has offered guidance stating that the
terms of the parody exception should be granted their ordinary dictionary meanings, as interpreted
by courts. 94 European guidance went one step further, characterising parodies as autonomous
concepts of EU law with the essential characteristic of:
1. evoking an existing work while remaining noticeable different from it; and
2. constituting an expression of humour or mockery. 95
When compared with the scope of the US transformativeness test, the UK, and many parts of
Europe, appear lacking in their ability to address transformative works that fall outside the genres
listed in the exception and outside of the requirement for humour. What is more, the UK parody
exception remains subject to the principles of fair dealing, an
"additional restriction which ensures that the exception is not misused, and will preclude the
copying of entire works where such taking would not be considered fair (for example if such works
are already licensable for a fee)". 96
In addition, the moral rights regime operating in the UK will continue to apply, a provision which
the IPO has explicitly stated is there to assure that creator reputations will be protected from
damage. 97 Moral rights under the CDPA grant an author the right "not to have his work subjected
to derogatory treatment". 98 "Treatment" is broadly defined as "any addition to, deletion from or
alternation to or adaptation of the work", while such treatment is
"derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the

honour or reputation of the author or director". 99
There are doubts among academics that any parody will be able to fit within a narrow interpretation
of the current moral rights doctrine. 100

Policy and solutions

This discussion began by noting the two elements that follow-on creativity requires: access to a
protected work and a clear delineation of the rights that will reside in any secondary work arising
from this access. The legal provisions summarised above do not give a clear answer to either of
these requirements. For some creative works, they will serve as a limited shield with which to
buy time and tackle takedown procedures. Some creators will even receive favourable results,
should they have the funds, patience and legitimacy required to reach court. 101 The doctrines fail
to answer the question of access and subsequent rights because they are primarily defences, an
acknowledgement of acts already committed and a method via which to maintain that the said acts
were legal. 102 The copyright regime is littered with neighbouring rights, some granting protection
to digital rights management systems capable of preventing access to protected works 103 and
others offering incentives for the swift, unchecked takedown of suspected infringing works. 104
As discussed, remix activities and follow-on creativity occur at every stage of legitimacy. Right
holders, licensed users, amateurs and professionals, all engage in the practice to varying degrees.
Some activities begin as infringing but rise up the ranks to attain a more commercially acceptable
status. Remix culture is developing, and commercial practices serve to delineate which activities
remain without rights—tolerated at the discretion of right holders only 105 —and which benefit
from copyright protection of their own. However, copyright law is not what is facilitating these
developments. Rather than playing an active role as an equaliser, benefiting all works displaying a
modicum of originality, copyright law allows commercial markets to make qualitative profitability
judgements on the basis of what creativity to tolerate, legitimise or bury. Were this merely a
question of the commercialisation of follow-on creative works, this neutrality may not have been
seen as egregious. But unlike file sharing, this is a matter beyond commercialisation. To "add to
the culture [one] read[s] by creating and re-creating", it is an expression of media *E.I.P.R. 793
literacy and an act of citizenship. These are activities which the law should encourage so long as
they don’t "stifle other forms of creativity". 106
Culture, necessity and distinctiveness

If the law has a genuine interest in addressing the reality of creative industry practice, a radical
upheaval of terminology and values is required. This is unlikely to occur, but the shape and form
of such an upheaval is useful to construct in order to inform more measured reform.
The major players of the creative industry attain most profit from the derivative. This does not
refer simply to the legal definition and a right holder’s exclusive rights towards the production
of derivative works and adaptations. It refers to the use of familiar elements of myth, culture and
character. A gradually diminishing respect for authors in favour of continuity experts, or "experts
in the industry", can often be noted. 107 Much of the success of music, film and other modes of

entertainment is more readily guaranteed through the knowledgeable exploitation of form and
structure, as well as an ability to predict consumer response. Henry Jenkins observes that:
"The old Hollywood system depended on redundancy to ensure that viewers could follow the plot
at all times, even if they were distracted … The new Hollywood demands that we keep our eyes
on the road at all times, and that we do research before we arrive at the theatre." 108
The two approaches of film-making described are calculated to produce different responses in
consumers. The former promotes accessibility, seeking to leverage the commercial value of
appealing to the widest possible audience. The latter is a new technique, probably a response to
lowered numbers of cinema goers, but increased potential for engagement due to technological
advance. 109 What the latter approach may not have considered is that aside from nurturing a
smaller audience towards being more individually responsive and profitable, it also drives them
to partake in labour, both ordinary and creative.
Transformative labour 110 is not a new justification for the granting of intellectual property rights.
John Locke’s theories on property, 111 later applied to the intellectual, pre-date much of the
development of the author originality discourse. 112 Though many of Locke’s justifications are
considered outdated, 113 in some ways his writings better reflect current industry practice. Labour
is applied by those in the service of right holders and strongly encouraged in consumers. Consumer
labour adds to the perceived quality, profitability and even complexity of the protected work, via
the dissemination of speculation, reactions, humour and other follow-on creative labour. It is often
consumers—listeners, readers, viewers—who add individual complexity to bare bones of form
and structure.
Of course this analysis does not apply to all creative works. Those works which remain within
the sole control of their creators often never reach this level of calculated abstraction. However,
it is not these works which follow-on creativity is largely concerned with. Lessig refers to remix
activities as "literacy" because they were born from an attempt to communicate and interact with
forms of media pervasive enough to become a part of a consumer’s cultural landscape. The instinct
to interact with one’s immediate cultural surroundings is not only a natural one, dating from our
own history of retold mythology, 114 but in fact it is also an activity that has been largely invited
by right holders in pursuit of commercial gain. Right holders do not necessarily acknowledge
that they invite such labour. The ideal consumer model is likely "an audience that buys what the
producers have to offer and respects the studio’s creative control over… [future] development".
115
The Star Trek saga, surrounded by litigation and attempts to control the means of audience
participation, 116 is an interesting case study in the right holder’s acknowledged interest in fan
activities. The television show’s fan base has a well-documented history of providing it with
promotion and support, with several mass letter-writing campaigns contributing significantly to
averting the show’s cancellation 117 Fan activities extended from the actively helpful to the more
commercially neutral, such as message boards for discussion and non-commercial fan creations.

The Star Trek producer, Paramount, made repeated attempts to monetise these activities, pursuing
the take down of unofficial fan sites and attempting to redirect traffic back to the official site. This
site itself had, for a time, been exclusive only to certain internet subscribers. 118 Technological
change, fan campaigning and the popularisation of the internet as a place where information wants,
and can be, free 119 resulted in a change in corporate practice. However, attempts by right owners
to control and monetise fan behaviour have not ceased. *E.I.P.R. 794
A legal doctrine addressing this precarious relationship between right holders and active
consumers will probably have to focus on the concepts of cultural literacy, necessity and
distinctiveness. Necessity already exists as a concept in copyright law, though its utility is severely
limited. It is frequently brought up as a means through which to contrast parody and satire. 120
Using copyright-protected elements as part of a parody is seen as necessary in order to produce
a comment upon the work being parodied. Satire, whose purpose is to comment on an outside
factor, usually cultural, is not perceived to have such a necessity. 121 When this same comparison
is viewed from a lens which regards certain protected works as a crucial part of culture, the
distinction becomes more laboured. Making a comment upon a creative work which is part of
the vernacular of society can be almost as necessary as language itself. I propose an extension of
the legal understanding of "necessity", allowing for the use of protected works not merely as a
comment upon something residing at the heart of the original, but as a piece of language necessary
to the phrasing of a comment on an element of culture and society. While this will not address
every instance of remix culture, many follow-on creative activities use protected media as a means
through which to communicate. 122 This will go beyond satire to cover a broader right to quotation
than currently exists in the UK.
As a safeguard to overuse, I propose that copyright take on loan the concepts of "distinctiveness"
and "dilution" from trade mark law. Permissible follow-on creativity should not result in the
blurring of the original creative work’s distinguishing capabilities. In practice, this suggestion is
not so far from already established copyright principles. Attribution is both an industry practice
and a requirement when utilising fair dealing exceptions in many Commonwealth legal systems.
As discussed, much of copyright is framed around the interests of the author figure, even in systems
with lowered emphasis on moral rights, such as those of our jurisdictions. A legal framework which
allows follow-on creativity in cases where the original work is attributed fairly and is allowed to
remain distinct in the minds of its audience, rather than overshadowed and replaced, is not alien
to copyright aims.
In its wording with regard to the purpose of copyright, the US Constitution manifests three policies:
the promotion of learning, explicitly stated; the preservation of a public domain, implied through
the imposition of a limited term of protection; and the protection of the author, as they are the
recipient of the rights provided. 123 These aims can be attained through a system which explicitly
allows follow-on creativity which does not create a loss of market distinctiveness. The market
analysis already incorporated in the current legal system will still be relevant. There is significance
in whether a primary and secondary work inhabit the same market, with the secondary work having

the potential to replace demand for the former. However, the legal conception of what constitutes
the "same market" will need to develop. As discussed, the creative industries have come to host
an increasingly normalised system of active consumption. While the law has remained the same,
practice within the industry has resulted in the creation of tiers of legitimacy. A fan who is fluent in
current practice will not mistake a follow-on work for the original: they will have little difficulty
in noting that the two come from a different market, even though both are, for example, musical
works.
The above should be facilitated by an active right to access a creative work one has fairly purchased
in such a way as to be able to utilise it fully, creatively, in the way one can tinker with a bicycle
or musical instrument. But what of the rights which stem from this use? A right to access is
far less controversial than a right to commercialise such use. 124 I propose that a way forward
would be an amalgamation of the labour and originality tests for copyright protection. It is difficult
to disagree that a secondary creator’s original labour upon a protected work ought to result in
certain rights to commercialise, as long as those elements making the subsequent work valuable
are completely independent from the original protected work. 125 In practice, this severance would
be impracticable in most cases of follow-on creativity. It is difficult to argue that a mash-up does
not derive its appeal, at least partially, from the songs it invokes. A work of fan fiction, no matter
how well written, will have attracted some of its initial audience with the promise of familiar
names and worlds. Only very few follow-on creative works can state that the original was mere
inspiration, training wheels which assisted creation but are nowhere to be found in the overall
commercial value of the final work. True severance can only be achieved through a deliberate
removal of those elements perceived at risk of leading to infringement—a process touched upon,
above, in the context of converted fan fiction. Without this process, there is almost inevitably some
overlap in the elements which make them appealing. 126
The concept that humanity is one person who continually grows 127 is not one that is suited
to a system of remuneration based upon property rights in creative *E.I.P.R. 795 expressions.
However, a doctrine that is uniquely suited to collaborative creation is that of joint works. 128
Unfortunately both the UK and US provisions, as they stand, are not appropriate for the majority
of creator and secondary creator relationships. The UK provision requires that the contribution of
each writer is "not distinct" from that of the others. Most remix works, even those which would
have difficulty passing a transformativeness test, are sufficiently delineated, characterised by a
differing style, range of content or tone. The US approach offers a different hurdle, requiring that a
joint work is "prepared … with the intention that [the] contributions be merged into inseparable or
interdependent parts of a unitary whole". 129 I have already noted that many producers of creative
works freely invite consumers to partake in beneficial fan labour. However, under current case law,
even a written invitation to create has not been read by courts as constituting a true intention to
create a joint work. 130 A loosening of this test can provide a clearer relationship between authors
and secondary creators, recognising the factual reality that the works being created contain original
elements from both the first and secondary contributor.

A right to create
The legal doctrines discussed above have shown a system that puts even non-commercial follow-
on creativity at risk of takedown, of blocking of access and, at worst, of costly legal repercussions.
The UK fair dealing approach has been shown to be overly narrow, risking its inability to
encompass certain creative variations of works. Meanwhile, the extensive case law surrounding
US fair use has shown it to produce variable results. Its imprecise nature only increases the risk
of high costs.
Some academics have suggested the incorporation of a "creativity exception". 131 This would
ideally encompass the best of both the UK list system and the open approach of the US, offering
a clear test rooted in transformativeness but retaining openness with regard to the type of work
which can benefit from it. Other approaches, such as that recently taken in Canada via the Canadian
Copyright Modernisation Act 2012, involve the creation of specific exception for non-commercial
use. The exception chooses to focus on genre rather than expectations of transformative content
and as such it simplifies its legal test to matters which are largely factual rather than subjective.
The conditions which such works must adhere to, aside from being non-commercial, are:
• the granting of proper attribution to the original, where reasonable;
• that the original work can be reasonably taken to come from a lawful source; and
• that the use has no substantial adverse effect on the exploitation or potential exploitation
of the original work. 132
Such an exception, if sufficiently ingrained in cultural consciousness and the commercial practices
of the creative industry, is capable of doing much for the security and peace of mind of those
whose works are non-commercial—granting an easy-to-use, genre-based test that does not require
proof of originality or any other qualitative threshold. Nevertheless, the exception is a defence,
not a right. It fails to provide a guarantee of access to creative interaction with one’s work. It is
left to the individual to lawfully obtain a version of the work capable of remix. The exception
gives no right to access and thus does little to equalise the status of digitally protected works
with traditional physical goods. The exception also fails to address the possibility of rights, and
value, arising from the secondary work, possibly because it simply does not envision them being
applicable in a work which was made to be non-commercial. In fact, systems of remuneration for
non-commercial works have already been developed, from optional tipping to fundraising, which
encourage creators to produce a much desired, but fundamentally non-commercial, service. These
contributions may be motivated by an interest in the original expressions produced by the creator
or through other factors, such as the allure of the secondary creative’s personality. Would such
fundraising activities, even where they are not solicited by the secondary creator, render a user
unprotected once again?
I propose that both a transformative test based "creativity exception" and a protected activity
exception such as that incorporated in Canada are insufficient to address the key issues concerning

follow-on creators. These exceptions, though they may appear novel, are little more than generous
restating of already existing legal principles. Many copyright scholars have expressed the view
that copyright has always been limited to the protection of commercial exploitation 133 or that non-
commercial activities should fall outside of copyright control through the fair use doctrine or other
means. 134 However, these interpretations of existing law have not resulted in the conception of
a right to access, read or create. Though many users may view the limitations and exceptions of
copyright as rights, they are better described as "contingent privileges extended … as a matter of
grace and good business sense, subject to being withdrawn whenever a business reason for doing
so appears". 135 As long as the rights of individuals are not delineated as such, *E.I.P.R. 796
the holes in legislation such as the Canadian exception will be utilised to revoke access whenever
commercially expedient.
Conclusions
The positions of the major players of the creative industries have been undergoing upheaval.
However, copyright has retained a passive role throughout. The few changes it has undergone
have been reactionary measures which are already being challenged as short-sighted. The UK and
US, under the guidance of art.13 of TRIPS, have retained a largely commercial approach to the
assessment of what secondary creative activities are permissible. There is scattered sympathy for
the transformative and non-commercial use, but this has been in the form of defences in protracted
legal battles. No attempt has been made to codify those rights which ought to be self-evident—
a right to interact creatively with a work you have lawfully obtained, and a right to receive some
measure of protection in the independent original elements you derive.
"The copyright story that the public is willing to invest in is a story about authors and readers." 136
Legislators ought to embrace copyright’s position as a facilitator of this relationship and devise a
legal system that does not put secondary creators and remix culture on the back foot, but empowers
their media literacy and incentivises them to create.
Cultural and commercial acceptance of certain tiers of secondary creativity can result in such
activities rising beyond amateur status and into a commercially viable, and exploitable, position.
The current legal system restricts this potential by allowing amateur activities to lose protection
and face the possibility of crippling legal action while their commercial viability is still in its
infancy. A more active system of rights will serve to improve the relationship between creative
consumers and right holders, encouraging right holders to view secondary creative works with
commercial interest rather than as an inconvenience to existing business plans.
Katerina Sharkova
NBCUniversal International, London

Footnotes
1 Thomas B. Ward, "What’s Old About New Ideas?" in Steven M. Smith, Thomas B.
Wad and Ronald A. Finke (eds), The Creative Cognition Approach (Cambridge,
MA: MIT Press, 1995), pp.157–178; Graham M. Dutfield and Uma Suthersanen,
"The Innovation Dilemma: Intellectual Property and the Historical Legacy of
Cumulative Creativity" [2004] I.P.Q. 380.
2 The punk movement of the 1970s is famous for its attempt to shrug off the
cultural restraints that came before it, but a cursory examination of the genre
disproves many of these claims.
3 Kathy Bowrey, "The Ideal Copyright Framework for Academic Authors? A
Bounty to Genius and Learning", Australian Academic and Research Libraries
(December 2002); Lawrence Lessig, Remix: Making Art and Commerce Thrive in
the Hybrid Economy (London: Bloomsbury, 2008), p.55.
4 John Perry Barlow, "A Declaration of the Independence of Cyberspace" (8
February 1996), https://www.eff.org/cyberspace-independence [Accessed 26
September 2018].
5 Robert Levine, Free Ride (New York: Anchor Books, 2011).
6 This model of diversifying creative portfolios has been used by film and
television producers since the 20th century in the form of companion books and
other tie-in works.
7 A&M Records Inc v Napster Inc 239 F. 3d 1004 (2001).
8 Lessig, Remix (2008).
9 J.K. Rowling’s support of fan fiction has been hailed as ground-breaking; for an
example of a 21st century writer who has wholeheartedly embraced the concept
of reader interpretation, see John Green’s website at http://johngreenbooks.com/
faq/ [Accessed 26 September 2018].
10 "Trekkies Orbit Around Copyright Turbulence", Wired World (November 1997).
11 In the case of hired artists, rights may already be assigned prior to the point of
creation.
12 Berne Convention for the Protection of Literary and Artistic Works 1886 (1971
revision with 1979 amendments) arts 1–2(1).
13 Copyright, Designs and Patents Act 1988 art.1(1)(a) – (c) .
14 SAS Institute Ltd v World Programming Ltd [2013] EWHC 69 (Ch); [2013]
R.P.C. 17 .
15 Lionel Bently and Brad Sherman, Intellectual Property Law (Oxford: Oxford
University Press, 2014), p.62, on Infopaq : "At first glance, it looks as if the
Court has eliminated any subject matter requirement, collapsing the question
of whether an intellectual production is protected into an assessment of its

originality. However, in SAS Institute Ltd. World Programming Ltd . Arnold J

rejected that reading. Called upon to decide whether a computer language might
be protected, he said that it was not enough that the subject be an ‘intellectual
creation’; rather, ‘it remains clear that the putative copyright work must be
a literary or artistic work within the meaning of Article 2(1) of the Berne
Convention’. "
16 WTO Panel decision (2000), case WT/DS160, at para.6.97.
17 WTO Panel decision (2000), case WT/DS160, at para.6.229.
18 Copyright, Designs and Patents Act 1988 arts 77 – 89 ; Julien Cabay and
Maxime Lambrecht, "Remix prohibited: how rigid EU copyright laws inhibit
creativity’" (2015) 10 Journal of Intellectual Property Law & Practice 368.
19 William Fisher, "Theories of Intellectual Property" in Stephen Munzer (ed.), New
Essays in the Legal and Political Theory of Property (Cambridge: Cambridge
University Press, 2001), pp.168–199.
20 Designer Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2001]
1 All E.R. 700 HL .
21 Berne Convention for the Protection of Literary and Artistic Works art.9(1).
22 Berne Convention art.9(2).
23 17 USC §106(1) (2006).
24 The UK is bound by EU legislation which informs the reproduction right: see
art.2 of Directive 2001/29 on the harmonisation of certain aspects of copyright
and related rights in the information society .
25 Copyright, Designs and Patents Act 1988, c.48, s.16(3)(a) ; Cavalier v Random
House Inc 297 F. 3d 815, 822 (9th Cir. 2002).
26 Nichols v Universal Pictures Corp 45 F. 2d 119, 121 (2d Cir. 1930); Cantor
Fitzgerald International v Tradition (UK) Ltd [2000] R..P.C. 95 Ch , Pumfrey J at
134.
27 SAS Institute v World Programming Ltd, (C-406/10) EU:C:2012:259; [2013]
Bus. L.R. 941 at [40].
28 Patrick R. Goold, "Why the U.K. Adaptation Right Is Superior to the U.S.
Derivative Work Right" (2014) 92 Nebraska Law Review 34.
29 Weatherby & Sons v International Horse Agency and Exchange Ltd [1910] 2 Ch.
297 Ch D .
30 Weatherby & Sons [1910] 2 Ch. 297 at 304–305; a more recent restating of the
UK market effect test can be found in Ravenscroft v Herbert [1980] 7 R.P.C.
193 Ch D at 203, holding that market competition was a crucial element in
determining what constitutes a "substantial part".
31 Cavalier v Random House Inc 297 F. 3d 815, 822 (9th Cir. 2002).
32 Data E. USA Inc v Epyx Inc 862 F. 2d 204, 209–210 and n.6 (9th Cir. 1988).
33 17 USC §101 (2006), defining the right.
34 Copyright, Designs and Patents Act 1988 s.20 .
35 Paul Goldstein, "Derivative Rights and Derivative Works in Copyright" (1983) 30
J. Copyright Society USA 217.

36 Warner Bros Entertainment Inc v RDR Books 575 F. Supp. 2d 513 (2008).
37 Though such arguments may appear should the makers of the derivative work
choose to argue fair use or other defences.
38 CDPA 1988 s.21(3) .
39 Worlds of Wonder Inc v Vertical Learning Sys 658 F. Supp. 351, 356 (N.D. Tex.
1986); Worlds of Wonder Inc v Vector Intercontinental, Inc 653 F. Supp. 125, 140
(N.D. Ohio. 1986).
40 Nimmer on Copyright, rev. edn, edited by I. Melville and David Nimmer (New
York: Matthew Bender & Co, 1978), s.3.01.
41 Jenna Skoller, "Sherlock Holmes and Newt Scamander: Incorporating Protected
Nonlinear Character Delineation into Derivative Works" (2015) 38 Columbia
Journal of Law & the Arts 577.
42 WIPO Copyright Treaty 1996; the extent to which the US has transposed this
provision is debatable, but for the purposes of this discussion the distribution
right of §106(3) will be sufficient.
43 Bennett Lincoff, "Common Sense, Accommodation and Sound Policy for the
Digital Music Marketplace" (2008) 2 J. Int’l Media & Entertainment. L. 1, 8.
44 The increasingly large terms of protection mean that right holders have the luxury
of benefiting from any fluctuation of popularity a work may encounter over its
lifetime, even if such resurgence is unrelated to any marketing efforts on their
part but from external events, such as the death of its author.
45 William Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant?
(Oxford: Oxford University Press, 2004), p.42.
46 Kathy Bowrey, "Celebrity, Fans and the Properties of the Entertainment
Franchise" (2011) 20 Griffith Law Review 209.
47 DC Comics v Towle, US Court of Appeals, Ninth Circuit (2015).
48 DC Comics v Towle, US Court of Appeals, Ninth Circuit (2015) at 8.
49 Bowrey, "Celebrity, Fans and the Properties of the Entertainment
Franchise" (2011) 20 Griffith Law Review 192.
50 This is also relevant with respect to the trade mark doctrine and its steady
encroachment into protection of original expressions within creative works. See
Irene Calboli, "Overlapping rights: the negative effects of trademarking creative
works" in Susy Frankel, Daniel Gervais (eds), The Evolution and Equilibrium of
Copyright in the Digital Age (Cambridge: Cambridge University Press, 2014);
Alex Kozinski, "Trademarks Unplugged" (1993) 68 N.Y.U.L. Rev. 960.
51 Henry Jenkins, Convergence Culture: Where Old and New Media Collide (New
York: NYU Press, 2006), p.334.
52 Johann Filler et al., "Innovation Creation by Online Basketball
Communities" (2007) 60 J. Bus. Res. 60, 63–70.
53 Jason Toynbee, "Reggae open source: how the absence of copyright enabled the
emergence of popular music in Jamaica" in Lionel Bently, Jennifer Davis and
Jane Ginsburg (eds), Copyright and Piracy (Cambridge: Cambridge University
Press, 2010), pp. 357–373; Johnson Okpaluba, "Digital sampling and music

industry practices, re-spun" in Kathy Bowrey and Michael Handler (eds),

Law and Creativity in the Age of the Entertainment Franchise (Cambridge:
Cambridge University Press, 2014), pp.75–100.
54 John Locke, Second Treatise on Government (1689), para.26.
55 William Fisher, "Theories of Intellectual Property" in New Essays in the Legal
and Political Theory of Property (2001), pp.83–88.
56 Directive 96/9 .
57 17 USC §101 (2006).
58 CDPA 1988, c.48, s.21 .
59 Micro Star v FormGen Inc 154 F. 3d 1107 (9th Cir. 1998); Nintendo of America v
Prima Communications U.S. Dist. (1997).
60 Jenkins argues that parents of young prosumers should "think about their [kids]]
appropriation as a kind of apprenticeship": Jenkins, Convergence Culture (2006),
p.182.
61 Johnson Okpaluba, "Digital sampling and music industry practices, re-spun" in
Law and Creativity in the Age of the Entertainment Franchise (2014), pp.75–100.
62 TRIPS art.9(2); WCT art.2; US Copyright Act s.102(b); Computer Programs
Directive art.1(2) .
63 Schwarz v Universal Pictures Co 85 F. Supp. 270, 275 (S.D. Cal. 1945).
64 Hoehling v Universal City Studios Inc 618 F. 2d 972, 979 (2d Cir. 1980).
65 Data East USA, Inc v Epyc Inc. 862 F. 2d 204 (9th Cir. 1988).
66 Shepard Fairey v Associated Press, No.09-01123 (S.D.N.Y. 2010).
67 The subsequent user remains free to use the facts of the work: see Feist
Publications v Rural Telephone Service Co 499 U.S. 340 (1991); Baigent v
Random House Group Ltd [2006] EWHC 719 (Ch); [2006] E.M.L.R. 16 .
68 Nimmer on Copyright (1978), §2.08[E][1] ("[C]opyright in [a] photograph
conveys no rights over the subject matter conveyed in the photograph.").
69 Bill Diodato Photography LLC v Kate Spade LLC, 388 F. Supp. 2d 382, 388,
392–93 (S.D.N.Y. 2005); Kaplan v Stock Mkt Photo Agency Inc.133 F. Supp. 2d
317, 320, 323 (S.D.N.Y. 2001).
70 W.W. Fisher, F. Cost, S. Fairey, M. Feder, E. Fountain, G. Steward and M.
Sturken, "Reflections on the Hope Poster Case" (2015) 25 Harvard Journal of
Law & Technology 243.
71 Fisher et al., "Reflections on the Hope Poster Case" (2015) 25 Harvard Journal of
Law & Technology 243, 269.
72 Copyright Act of 1976, 17 USC, ss.108(a)–(i).
73 Robert Burrell and Allison Coleman (eds), Copyright Exceptions: The Digital
Impact (Cambridge: Cambridge University Press, 2005), "The fair use panacea",
pp.249–275.
74 CDPA s.30(1) .
75 IPC v News Group Newspapers Ltd [2005] EWHC 317; [2005] E.M.L.R. 23 .
76 Copinger and Skone James on Copyright, 17th edn, edited by Nicholas Caddick,
Gillian Davies and Gwilym Harbottle (London: Sweet & Maxwell, 2016).

77 Copinger and Skone James on Copyright (2016).

78 Beloff v Pressdram Ltd [1973] R.P.C. 765 Ch D .
79 See http://www.societyofauthors.org/ [Accessed 26 September 2018].
80 Channel 4, "Fair Dealing Guidelines", http://www.channel4.com/producers-
handbook/c4-guidelines/fair-dealing-guidelines [Accessed 26 September 2018].
81 Copyright Act of 1976 s.107.
82 Salinger v Colting 641 F. Supp. 2d 250 (S.D. N.Y. 2009); Warner Bros.
Entertainment Inc v RDR Books 575 F. Supp. 2d 513 (S.D. N.Y. 2008).
83 Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2009] FCA
799 (30 July 2009); Bright Tunes Music v Harrisongs Music 420 F. Supp. 177
(S.D.N.Y. 1976).
84 Rogers v Koons 960 F. 2d 301 (2d Cir. 1992).
85 It is interesting to note that copyright has refused to protect business plans,
and therefore the originality and ingenuity, involved in devising a market and
subsequent demand, are incapable of being protected. However, the secondary
creative’s unprotected labour is subsequently free to be utilised by the right
holder of the original work.
86 Campbell v Acuff-Rose 510 U.S. 569 (1994).
87 Campbell v Acuff-Rose 510 U.S. 569, 579 (1994).
88 First Amendment to the United States Constitution.
89 Fisher v Dees, 794 F. 2d 432 (9th Cir. 1986).
90 Matthew Sag, "Predicting Fair Use" (2012) 73 Ohio St. L.J. 47, 58.
91 Bowrey, "Celebrity, Fans and the Properties of the Entertainment
Franchise" (2011) 20 Griffith Law Review 192; Woodmansee (2011).
92 Mattel Inc v Pitt 229 F. Supp. 2d 315 (S.D.N.Y. 2002).
93 Copyright, Designs and Patents Act 1988 s.30A , added by Copyright and Rights
in Performances (Quotation and Parody) Regulations 2014/2356 .
94 IPO, "Modernising Copyright: A modern robust and flexible framework" 1(7
December 2012).
95 Deckmyn v Vrijheidsfonds (C-201/13) EU:C:2014:2132; [2014] Bus. L.R. 1368 .
96 IPO, "Modernising Copyright, A modern robust and flexible framework" (17
December 2012).
97 IPO, "Modernising Copyright, A modern robust and flexible framework" (17
December 2012).
98 CDPA s.80(1) .
99 CDPA s.80(2) .
100 Rt Hon. Sir Robin Jacob, "Parody and IP claims: a defence? – a right to
parody?" in R.C. Dreyfuss and J.C. Ginsburg (eds), Intellectual Property at the
Edge: The Contested Contours of IP (Cambridge: Cambridge University Press,
2014), p.435.
101 Suntrust v Houghton Mifflin Co 252 F. 3d 1165 (11th Cir. 2001); Baigent v
Random House Group [2006] EWHC 719 (Ch), [2006] E.M.L.R. 16 ; Blanch v
Koons 467 F. 2d 206 (2d Cir. 2013).

102 Levine, Free Ride (2011), p.19.

103 See Infosoc Directive, Recital 13 ; 1976 Copyright Act s.1201.
104 Anjanette H. Raymond, "Heavyweight Bots in the Clouds: The Wrong Incentives
and Poorly Crafted Balances That Lead to the Blocking of Information
Online" (2013) 11 Northwestern Journal of Technology and Intellectual Property
473.
105 Jessica Litman, "Real Copyright Reform" (2010) 96 Iowa Law Review 1.
106 Lessig, Remix (2008), p.114.
107 Miles Franklin, Bring the Monkey (University of Queensland, 1984), pp.38–40,
74.
108 Jenkins, Convergence Culture (2006), pp.103–104.
109 Daniel Gervais, "The Tangled Web of UGC: Making Copyright Sense of User-
Generated Content" (2009) 11 Vanderbilt J. of Ent. and Tech Law 841, 851.
110 Gervais, "The Tangled Web of UGC" (2009) 11 Vanderbilt J. of Ent. and Tech
Law 841, 851.
111 John Locke, Second Treatise on Government (1689), para.26.
112 Kant, On the Injustice of Counterfeiting Books (1785); Hegel, Philosophy of
Right (1820).
113 Fisher, "Theories of Intellectual Property" in New Essays in the Legal and
Political Theory of Property (2001), pp.168–199.
114 Henry Jenkins, Textual Poachers: Media Fans and Participatory Culture
(Abingdon/New York: Routledge, 1992).
115 Tulloch and Jenkins, Science Fiction Audiences: Watching Doctor Who and Star
Trek (Abingdon/New York: Psychology Press, 1995).
116 Kathy Bowrey, "The New Intellectual Property" (2011) 20 Griffith Law Review
200.
117 Bowrey, "The New Intellectual Property" (2011) 20 Griffith Law Review 200.
118 Bowrey, "The New Intellectual Property" (2011) 20 Griffith Law Review 200,
203.
119 Barlow, "A Declaration of the Independence of Cyberspace" (8 February 1996),
https://www.eff.org/cyberspace-independence [Accessed 26 September 2018].
120 Khanuengnit Khaosaeng, "Wands, sandals and the wind: creativity as a copyright
exception" (2014) 36 E.I.P.R. 238, 244.
121 Dr Seuss Enterprise v Penguin Books; Mattel, Inc. v. Pitt, 229 F. Supp. 2d 315
(S.D.N.Y. 2002): the court in this case went to interesting lengths to find the
secondary creative work as a parody rather than a satire, attributing motivations
and commentary to the secondary work. Should judges be expected to act as art
critics in this way?
122 Lessig, Remix (2008), pp.51–53.
123 L. Ray Patterson and Stanley W. Lindberg, "The Nature of Copyright: A Law of
Users’ Rights" (1992) 90 Michigan Law Review 49.
124 Lessig has argued for an amateur "exemption" for remix activity; Lessig, Remix
(2008), p.28.

125 Khaosaeng, "Wands, sandals and the wind" (2014) 34 E.I.P.R. 238, 246.
126 Though in the case of Campbell v Acuff-Rose 510 U.S. 569, 579 (1994), a
difference in the audience who find the elements appealing resulted in safety
from the law of infringement.
127 Blaise Pascal, Preface to the Treatise on Vacuum (Harvard Classics, 1908).
128 CDPA ss.10 , 10A ; 17 USC §101.
129 CDPA ss.10 , 10A ; 17 USC §101.
130 Micro Star v FormGen Inc. 154 F. 3d 1107 (9th Cir. 1998); Nintendo of America
v Prima Communications U.S. Dist. (1997).
131 Khaosaeng, "Wands, sandals and the wind" (2014) 34 E.I.P.R. 238, 245–249.
132 Canadian Copyright Act art.29.21.
133 L. Ray Patterson and Stanley F. Birch Jr, "A Unified Theory of Copyright" (2009)
46 Hous. L. Rev. 215, 293–296, 385–395 (2009).
134 Glynn S. Lunney Jr, "Fair Use and Market Failure: Sony Revisited" (2002) 82
B.U. L. Rev. 975, 1017–1029.
135 Litman, "Real Copyright Reform" (2010) 96 Iowa Law Review 1, 38.
136 Litman, "Real Copyright Reform" (2010) 96 Iowa Law Review 1, 31.

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Definitions and stakeholders

Creators and entrepreneurs—the right holder perspective

(c) the typographical arrangement of published editions. 13

The rights involved

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The right of reproduction

In both the UK and US it is generally an infringement to copy a "substantial part" of a copyright

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The derivative work or adaptation right

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The right to communicate to the public

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The rights in commercial practice

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Limitations and exceptions

The idea/expression dichotomy

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Fair use and fair dealing

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a difference in levels of creativity invoked, as between an encyclopaedia and a fictional literary

"derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the

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Policy and solutions

Culture, necessity and distinctiveness

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NBCUniversal International, London

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originality. However, in SAS Institute Ltd. World Programming Ltd . Arnold J

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industry practices, re-spun" in Kathy Bowrey and Michael Handler (eds),

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77 Copinger and Skone James on Copyright (2016).

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102 Levine, Free Ride (2011), p.19.

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