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While the market may value someone’s use of a creative work greater than another’s, copyright law makes no value distinction between the two. That may change soon, and creators should be worried.
At the March 13 hearing on orphan works, the textile manufacturer representative, Corinne P. Kevorkian of Schumacher (read her testimony here (PDF)) brought up a new argument related specifically to graphics created for textiles: that orphan works relief should be prohibited from protecting users of ”pictorial or graphic work[s] that w[ere]
as initially created for commercial exploitation or w[ere] as at any time commercially exploited.”
This argument, besides it simply being an industry carve out, is new to the debate. While her proposed carve out may be fairly broad, others have modified it in a way that may be more palatable, by limiting the scope to exclude the use of orphans commercially exploited in “useful articles.” Discussion of a useful article arises under copyright law when you have a pictorial, graphic, or sculptural work that has utilitarian functions beyond just conveying the expression the work.
You don’t need to go far to think what kind of follow-on uses of orphan works that would be limited without orphan protection—just go to any popular digital photo website to see on what “chotchkies” you can slap your favorite pics. Flickr.com on its front page shows photoCubes, posters, calling cards, calendars, and onto Zazzle.com for framed images, t-shirts, mousepads, mugs and travel mugs, steins, magnets, keychains, bumper stickers, buttons, stamps, bags, hats, aprons, and ties. The list goes on.
Increasingly, the sale of these “chotchkies” are how many companies derive revenue as more photography and graphical arts are born digital. These useful articles may not have much value besides as a keepsake or gag-gift to the person for whom they are created, so it’s understandable why some in the orphan works debate may be placing less value on them, as compared to “truly creative” follow-on works. It’s a difficult argument to dispute, because in your gut you say, “Mugs and mousepads are give-aways, do we really need to worry about protecting useful articles?”
Surely there must be some non-chotchkie useful article that would give us pause.
Enter Devorah Sperber, who has created a fascinating art exhibition of hanging beads depicting Star Trek characters, like this one of Capt. Kirk. Her artistic reasons for these creations are explained as follows:
For Sperber the exhibition is an opportunity to look at the relationship between popular science and art, and how they relate to larger metaphysical issues. In particular, she is interested in how consciousness and the act of seeing create the illusion of a stable, predictable, singular world.
While more intricate and perhaps thought provoking (presuming her use of copyrighted Star Trek characters is lawful), her hanging strands of beads are essentially beaded curtains— no different from the utilitarian beads that might hang in a small apartment doorway (like this smiley face one).
I’m not trying to argue whether Sperber's art is separable from the useful article, or whether it can be protected as a whole under copyright law. Her art is an example of works applied to useful articles. Should it make a difference how a work is used, under the law? Uses have equal weight, today, but Ms. Kervorkian’s rule would change copyright law to put a premium value on one kind of use of a creative work over another—simply because of the way it is used--in this case applied to or otherwise embedded in a “useful article”.
Is one kind of use more valuable in the market than another? Maybe. But does copyright law care? No, the market value of one creative work (including follow-on derivatives applied to useful articles) compared to another isn’t part of the equation under the law.
Another example of art applied to a non-chotchkie useful article: Andy Warhol’s infamous painting of the BMW M1 race car (which if you ask this Bimmerphile was a very useful article).
It’s a dangerous business permitting copyright law to value certain creative works and their uses over others, but that is exactly what textile manufactures are asking for with their proposed carve-out. Is the value of your creative works about to change next under the law? We will see as soon as next week whether their arguments are persuasive with Members of Congress.