From: [t--o--a] at [uiuc.edu] (TJ Sowa)
Newsgroups: rec.games.frp.dnd
Subject: Essay: Fair Use Law and TSR Copyrights (1/2)
Date: 28 Oct 1995 04:25:27 GMT
Preface:
The following is part 1 of 2 parts of a paper I wrote as an
independent study project in my final semester of study at
the University of Illinois College of Law. (Yes, I got a
good grade for it, an A, to be precise.) As such, it is a
piece of student scholarship, not legal advice. However,
in conjunction with the editorial and moral support of
James Vassilakos, I submit my work for the sake of debate.
It is, of course, copyrighted material. Any individual human user
may use and reproduce this work for noncommercial, personal use,
including dissemination over the Internet. A corporation and any
other legal entity not of the flesh and the blood is expressly
excluded from this license. Public dissemination other than via
the Internet requires my express consent, which is hereby withheld
for uses other than the above-mentioned.
I hope you find it provocative.
===============================================================================
Swords, Sorcery & Greed in Cyberspace
The Great TSR Copyright Scandal on the Internet
by
Timothy J. Sowa
[t--o--a] at [students.uiuc.edu]
Copyright (c) May, 1995
===============================================================================
Table of Contents
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Role-Playing Games Generally. . . . . . . . . . . . . . . . . . . 2
1. Role-Playing Games as Theatre. . . . . . . . . . . . . . . . 3
2. Role-Playing Games as Creativiy Aids . . . . . . . . . . . . 4
B. TSR's Dungeons & Dragons. . . . . . . . . . . . . . . . . . . . . 5
1. TSR's Claims of Ownership. . . . . . . . . . . . . . . . . . 5
2. Player Character Sheets. . . . . . . . . . . . . . . . . . . 8
III. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
A. The Question Presented. . . . . . . . . . . . . . . . . . . . . .11
B. Fair Use Under s. 107 of the Copyright Act of 1976. . . . . . . .14
C. The Common Law Development of the Fair Use Doctrine . . . . . . .14
1. Supreme Court Fair Use Jurisprudence . . . . . . . . . . . .15
(a) Sony Corp. of America v. Universal City Studios, Inc. .15
(b) Harper & Row, Publishers, Inc. v. Nation Enterprises. .18
(c) Stewart v. Abend. . . . . . . . . . . . . . . . . . . .20
(d) Campbell v. Acuff-Rose Music, Inc.. . . . . . . . . . .22
2. Applicable Lower Federal Court Fair Use Jurisprudence. . . .26
(a) Twin Peaks Productions, Inc. v. Publications
International, Ltd . . . . . . . . . . . . . . . . . .28
(b) National Rifle Ass'n of America v. Handgun Control
Federation . . . . . . . . . . . . . . . . . . . . . .29
D. TSR's Copyrights & the Fair Use Doctrine. . . . . . . . . . . . .29
1. The Purpose and Character of the Use of D&D. . . . . . . . .30
2. The Nature of D&D as a Copyrighted Work. . . . . . . . . . .31
(a) Systemic D&D Terminology. . . . . . . . . . . . . . . .31
(b) Substantive D&D Works . . . . . . . . . . . . . . . . .32
(c) The Functional Nature of D&D. . . . . . . . . . . . . .33
3. The Substantiality of the Amount of D&D Works Used . . . . .36
4. The Market Effect on D&D of Noncommercial Sharing. . . . . .37
5. The Public's Interest in Artistic Freedom. . . . . . . . . .38
IV. Resolved: D&D Players Can Share Their Works on the Internet . . . . .40
V. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
===============================================================================
Table of Authorities
~ Statutes ~
17 U.S.C. s. 101. . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16
17 U.S.C. s. 106(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17 U.S.C. s. 107. . . . . . . . . . . . . . . . . . . 13, 14, 16, 17, 27, 30
Copyright Act of 1976, 17 U.S.C. ss. 101-810 (1992) . . . . . . . . . . . 12
U.S. Const. amend. I .. . . . . . . . . . . . . . . . . . . . . . . . . . 19
U.S. Const. art. I, s. 8, cl. 8 . . . . . . . . . . . . . . . . . . . . . .2
~ Cases ~
Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296
(9th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Arica Inst., Inc. v. Palmer, 970 F.2d 1067 (2d Cir. 1992). . . . . . . . 42
Baker v. Selden, 101 U.S. 99 (1880). . . . . . . . . . . . . . . . . . . 11
Benny v. Loew's Inc., 239 F. 2d 532 (9th Cir. 1956), aff d by
default by an equally divided Court, 356 U.S. 43 (1958). . . . . . . . . 15
Campbell v. Acuff-Rose Music, Inc., 114 S.Ct.
1164 (1994). . . . . . . . . . . . . . . . . . 15, 22-26, 31, 32, 34, 37-39
Folsum v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901). . 15, 23, 25
Harper & Row, Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985). . . . . . . . . . . . . . . . 13, 18-20, 27, 28,32, 39
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) . . . . . . . 39
Morrissey v. Procter & Gamble, 379 F.2d 675 (1st Cir. 1967). . . . . . . 11
Narell v. Freeman, 872 F.2d 907 (9th Cir. 1989). . . . . . . . . . . 13, 32
National Rifle Ass'n of America v. Handgun Control Fed'n,
15 F.3d 559 (6th Cir. 1994). . . . . . . . . . . . . . . . . . . . . 27, 29
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984). . . . . . . . . . . . 11, 15-18, 20,23, 24, 34, 37, 38
Sony Corp. of America v. Universal City Studios, Inc.,
480 F. Supp. 429 (1979). . . . . . . . . . . . . . . . . . . . . . . 17, 18
Stewart v. Abend, 495 U.S. 207 (1990). . . . . . . . . . . . . . . . 20, 21
Twin Peaks Prods., Inc. v. Publications Int'l, Ltd.,
996 F.2d 1366 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 28
Williams & Wilkins Co. v. United States, 487 F.2d 1345 (1973),
aff'd by default by an equally divided Court, 420 U.S. 376 (1975). . . . 15
~ Legislative Materials ~
H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976). . . . . . . . . 13, 14, 27
~ Books ~
B. Kaplan, An Unhurried View of Copyright (1967) . . . . . . . . . . 11, 41
Donald S. Chisum & Michael A. Jacobs, Understanding Intellectual
Property Law (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Ed Greenwood, Waterdeep and the North (1987) . . . . . . . . . . 32, 33, 36
Fiend Folio (Don Turnbull ed., 1981) . . . . . . . . . . . . . . . . . . 36
Gary Gygax, Dungeon Masters Guide (1979). . . . . . . . 5, 8-10, 31, 33, 38
Gary Gygax, Monster Manual (4th Ed. 1978). . . . . . . . . . . . . . . . 37
Gary Gygax, Monster Manual II (1983). . . . . . . . . . . . . . . . . . . 7
Gary Gygax, Players Handbook (1978) . . . . . . . . . . . . . . 6, 8-10, 31
J.R.R. Tolkien, The Lord of the Rings (1965).. . . . . . . . . . . . . 7, 8
James W. Ward & Robert J. Kuntz, Deities & Demigods (1980). . . . . . . . 6
John Shelton Lawrence, Copyright, Fair Use and the Academy, in Fair Use
and Free Inquiry 3 (John Shelton Lawrence & Bernard Timberg eds., 1989). 14
Revelation 12:3-4 (King James). . . . . . . . . . . . . . . . . . . . . . 1
Robert A. Gorman & Jane C. Ginsburg, Copyright for the Nineties (1993) . 21
Scott Haring, Empires of the Sands (1987). . . . . . . . . . . . . . 33, 34
The Federalist, No. 43 (James Madison). . . . . . . . . . . . . . 2, 27, 39
Webster's Ninth New Collegiate Dictionary (Merriam-Webster 1984) . . . . 37
William F. Patry, Latman's The Copyright Law (1986). . . . . . . . . . . 28
~ Periodicals ~
Deborah Reilly, The National Information Infrastructure and Copyright:
Intersections and Tensions, 76 J. Pat. & Trademark Off. Soc'y 903 (1994) 35
Dragon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Roger L. Zissu, Fair Use: From Harper & Row to Acuff-Rose, 42 J.
Copyright Soc'y U.S.A., Fall 1994. . . . . . . . . . . . . . . . . . . . 39
The Supreme Court, 1993 Term, 108 Harv. L. Rev. 331 (1994) . . . . . . . 42
TSR Copyrighted Material, available at the TSR Copyright Discussion
Page, http://www.rpi.edu/~toigom/copyright/index.html. . . . 2, 3, 7, 8, 34
===============================================================================
And there appeared another wonder in heaven;
and behold a great red dragon, having seven
heads and ten horns, and seven crowns upon
his heads.
And his tail drew the third part of the
stars of heaven, and did cast them to the
earth....
[n.1: Revelation 12:3-4 (King James)]
I. Introduction
Once upon a time, artists and writers all over the world created a magical
kingdom where dragons flew, beautiful women cast spells of enchantment (or
terror), and heroes bestrode the land. Then one day, a large multinational
corporation called TSR, Inc. cast a stupendous shadow over the land. It said,
"This is Our land. This is not your land." And TSR threatened any would-be
contestant to its rule with the Law. Soon huge portions of the kingdom began
to fade away beyond recall, megabyte by megabyte. No hero, not even a villain,
dared face the TSR corporation in the unfair battlefield of the Courts of Law,
where money and fancy lawyers counted far more than ones strength in virtue or
aura of righteousness. Eventually, only a tiny portion of the once vast and
exotic kingdom remained, a veritable petting zoo called the Multi-Player Gaming
Network, kept under lock and key by the mighty TSR corporation. All who seek
to attain citizenship in this rump kingdom must first acknowledge fealty to TSR
as derivative works. Such is the state of terror to this very day...
II. Background
A power "to promote the progress of science and useful arts, by
securing for a limited time, to authors and inventors, the exclusive
right, to their respective writings and discoveries."
The utility of this power will scarcely be questioned. The copyright
of authors has been solemnly adjudged in Great Britain to be a right
at common law. The right to useful inventions seems with equal
reason to belong to the inventors. The public good fully coincides
in both cases, with the claims of individuals. [n.2: The Federalist,
No. 43 (James Madison) U.S. Const. art. I, s. 8, cl. 8]
A. Role-Playing Games Generally
The introduction might sound like something out of a video game brochure, or a
module for a fantasy role-playing game (RPG). In fact, in the summer of 1994,
the TSR corporation did indeed send out cease-and-desist letters threatening
legal action against any on-line computer site that carried allegedly
derivative works of TSR RPGs. [n.3: TSR Copyrighted Material, available on the
Internet at the TSR Copyright Discussion Page, http://www.rpi.edu/
~toigom/copyright/index.html] As a result, computer site operators all over
the world began to take off-line all material created with a TSR gaming system.
Megabytes upon megabytes of story modules, character creations, original
spells, never-before-dreamed-of monsters, and finely crafted weapons and other
magic items all disappeared into the unrecoverable ether of history. To this
day, writers and other artists involved in TSR-related RPGs feel profoundly
chilled in their ability to share their phantasmic creations publicly over
on-line computer media such as the Internet. They simply do not want TSR to
file a lawsuit against them which they can neither afford nor even begin to
fight. [n.4: See generally id. Much of the author's knowledge of TSR's RPG and
RPGs generally comes from over fifteen years of personal experience with
role-play gaming, particularly in TSR-produced gaming systems such as Advanced
Dungeons & Dragons.]
1. Role-Playing Games as Theatre
A role-playing game is a sort of improvisational amateur theatre, usually set
in a particular genre such as fantasy, science-fiction or Gothic horror. RPG
players choose and develop dramatic personae whom the players act out over a
long period of time. Like a soap opera, an RPG has no theoretical limit for
how long the game can continue. Each player in an RPG normally acts out the
role of only one character. [n.5: If a player's character dies, then a player
will develop a new character. In any case, a player performs only one
character at a time. An RPG with frequent player character deaths would be
considered abnormally lethal (though not necessarily boring).] Along with the
group of players, an RPG has a game master (GM), a coordinator and referee of
the events that act upon and occur between the characters.
RPGs seek to simulate the reality of the setting for the players' characters.
Random probability calculations perform a crucial function to help simulate the
vagaries and uncertainties of real life. For example, a character might or
might not have the strength to bust down a door. RPGs most commonly use dice
to see if a character busted open the door, bent the bars, lifted the gates,
dodged the arrow, hit the goblin, or seduced a newfound paramour. The GM
calculates the probability of the various possible scenarios to a given course
of action and interprets the results from the roll of the dice. The GM
narrates ongoing events, plays the roles of all monsters and dramatic
characters other than those played by the players themselves, and generally
works to keep the whole world going like one grand illusion.
The fine art of developing a role-playing system hinges upon breaking down this
phantasmagorical shared vision of an alternate reality into manageable,
comprehensible bits of information. An RPG essentially acts as an "accounting
system" to keep track of the action. Many RPGs have methods to represent time,
distance, combat, weapons, spells, money, monstrous attributes, and the
characters themselves.
The GM acts as accountant, arbiter and storyteller via the RPG system so that
the players may focus as much as possible on the dramatic moment. Ideally, the
vocabulary of the RPG will occur as little as possible during a game session,
such as for a form of shorthand to describe a situation. For example, in
response to the GM's news that a big hairy ogre just jumped out from behind a
rock, a player might roll a die and say, "All right, I hit him with my trusty
long sword." The verbal exchange concerns the dramatic moment, but the RPG
system governs the results of random dice rolls.
2. Role-Playing Games as Creativiy Aids
Like with computer operating systems, RPG players need to speak the same
language. Each RPG system accounts for and simulates reality with terminology
specific to that system. Because of the elaborate methods used to account for
an ever-more-accurate simulation of an alternate reality, RPG systems often do
not translate readily from one RPG to another. As a consequence, players tend
to group around particular RPGs so that they can play with many different
people and so that they can have the widest possible choice of RPG aids and
add-ons. TSR owns the most popular and oldest RPG, Dungeons & Dragons (D&D).
As a consequence, just as Microsoft dominates the software industry, TSR
dominates the RPG industry. All other RPGs play a peripheral role in
comparison, with fewer add-ons and RPG supplements.
One final note on RPGs generally. The whole point of an RPG system is to
facilitate creativity. The endless tables for interpreting various possible
dice rolls and the sundry terms all seek to promote a dramatic yet realistic
role-playing experience. RPGs primarily function to help players create new
versions of all the dramatic elements that go into the game, such as
characters, monsters, spells, histories, maps, dungeons, dragons, and entire
worlds. All the terms used in an RPG "accounting system" act to promote
creativity, not stifle it. To analogize again to the computing industry, RPGs
work as an aid in the same way a word-processor helps create literature or a
graphic design program helps create visual works. The whole point is not to
stifle the creative process but to enable more and better works created through
the tools at hand.
B. TSR's Dungeons & Dragons
1. TSR's Claims of Ownership
Dungeons & Dragons is an RPG set in the fantasy genre. It rightfully deserves
the title as the "grandaddy" of all RPGs. D&D incorporates all of the above-
mentioned elements and characteristics of RPGs. As an example of the
idiosyncratic nature of RPG terminology, D&D calls the game master a Dungeon
Master (DM). [n.6: Gary Gygax, Dungeon Masters Guide 9 (1979) (hereinafter
DMG)] TSR, in turn, claims a trademark on the Dungeon Master term. [n.7: See
id.] D&D also uses standard terminology to describe the many aspects of its
game system. Players' characters have scaled ability scores reminiscent of
intelligence quotients to represent not only intelligence but also strength,
wisdom, dexterity, etc. [n.8: Gary Gygax, Players Handbook 9-13 (1978)
(hereinafter PH)]
D&D uses combinations of five different terms to describe a character's
overall moral and political disposition, or alignment: good, evil, chaotic,
lawful, or neutral. [n.9: Id. at 33. Characters combine alignment terms to
pigeonhole their general beliefs, e.g. chaotic/neutral, lawful/good, or
neutral/evil. Creatures of nature are absolutely neutral. Id.] Each character
also has the capacity to withstand a certain amount of physical damage, or hit
points; i.e., a character with more hit points can survive more damage. [n.10:
Id. at 34.] In this way D&D accounts for aspects of the simulated reality with
terms unique to the D&D system.
D&D, however, uses these terms to incorporate systematically the rest of the
multiverse of creative intellectual property. For example, TSR has cast entire
pantheons of gods into D&D terminology. [n.11: James W. Ward & Robert J. Kuntz,
Deities & Demigods (1980)] Mortal player characters (PCs) can encounter, to
their lasting dismay and delight, Zeus [n.12: Id. at 63.] or Quetzalcoatl,
[n.13: Id. at 32.] Indra [n.14: Id. at 75.] or Amaterasu Omikami, [n.15: Id. at
81.] all in the context of the D&D system. Norse Valkyries [n.16: Id. at 124.]
would have a number of hit points, an intelligence score, and an overall
ability to function at a certain level based on their number of hit dice.
[n.17: Gary Gygax, Monster Manual II, at 5 (1983) (hereinafter MM2)] TSR would
not claim ownership over Valkyries in this case but to the representation of
Valkyries in D&D terminology. [n.18: TSR, supra note 3.] Similarly, TSR does
not claim ownership over the characters created in the process of playing D&D.
[n.19: Id.] TSR claims ownership over players' characters as represented in
D&D terminology. [n.20: Id.] Likewise, TSR claims ownership over the whole
ball of beeswax, over any and all works represented with D&D terminology as
alleged derivative works. [n.21: Id.]
TSR claims ownership not only over D&D adaptations of public domain
intellectual property such as mythology, but also derivative D&D versions of
copyrighted works. [n.22: See id.] D&D itself owes a vast debt to Professor
J.R.R. Tolkien's The Lord of the Rings. [n.23: J.R.R. Tolkien, The Lord of the
Rings (1965).] Professor Tolkien's very own hobbits are one of the six primary
races chosen by players as their characters, along with elves, dwarves, humans,
half-elves, and gnomes. [n.24: PH, supra note 8, at 13-18.] One could argue
D&D itself first arose out of an attempt to adapt Middle Earth to an RPG
setting. Five out of six of the races primarily used by players for characters
come from Middle Earth. [n.25: Tolkien, supra note 23.] Many of the most
ubiquitous monsters come from Middle Earth, including orcs, goblins, giants,
and talking trees. [n.26: Id.] Of course, The Lord of the Rings occupies a
central place in the modern appetite for fantasy literature. D&D incorporates
elements from fantasy literature and naturally includes Middle Earth material
as a central part of the game. The result remains the same: TSR claims
ownership over works alleged as derivative of works themselves derived from the
public domain and from the copyrighted material of others. [n.27: TSR, supra
note 3.]
2. Player Character Sheets
In addition to abilities scores, hit points, alignment and race, D&D
utitilizes further categories to account for a character. Armor class
represents armor protection, with naked skin at ten; the lower the number, the
better the armor class. [n.28: DMG, supar note 6, at 73.] Some RPGs enable
player characters to acquire skills piecemeal. D&D requires PCs to choose a
profession, or class. Players choose from the general classes of fighters,
clerics, magic-users, and thieves (a.k.a. rogues). [n.29: PH, supra note 8, at
18-33.] Each class has certain advantages and disadvantages. A fighter can
hit well and survive otherwise-mortal blows. [n.30: Id. at 22.] A thief can
sneak and steal. [n.31: Id. at 26-28.] Neither can cast spells. [n.32: Id. at
22, 26-28.] Magic-users and clerics, commonly referred to as spell-casters, do
not have the physical prowess fighters and thieves possess. [n.33: Id. at
18-33.] Clerics and only clerics can cast certain spells. [n.34: Id. at 20.]
Magic-users likewise have their own spells which only they can cast. [n.35: Id.
at 25-26.] As player characters accumulate experience, they grow more
competent in their craft. They rise to new levels and gain the ability to hit
better, steal better, or cast more powerful spells. [n.36: Id. at 18-33.]
Finally, characters have miscellaneous categories to describe them. They can
have language proficiencies, [n.37: DMG, supra note 6, at 102; PH, supra nore
8, at 34-35.] or a physical description including height and weight, [n.38:
DMG, supra note 6m at 102.] as well as hair, skin and eye color. Characters
can have birthdays and their ages listed, [Id. at 12-13. The meaning of years
differs radically among the races. Elves, for example, of age 90 legally would
not have attained the age of majority. In comparison, a mountain dwarf at 90
would be mature, i.e. somewhere in between a young adult and middle age. Id.
at 13.] a scaled score to rank their socioeconomic background, and a secondary
class such as gambler or husbandman in addition to their "professional" class.
[n.40: Id. at 12.] All of a character's information will be listed on a
character sheet, including not least of which a character's most prized and
mundane possessions. A character sheet will include these basic and
miscellaneous categories of a player character and also the implications of
their scores. For example, a fighter of a certain level and a certain strength
and dexterity, wielding a certain weapon, consequently has a predetermined
probability to hit an opponent of armor class zero. Rather than calculate all
of these factors and then look up the fighter's chances in the appropriate "to-
hit" table, players often include a to-hit-armor-class-zero score in their
character sheets (THAC0, pronounced thack-o). [n.41: See id. at 74-75; PH,
supra note 8, at 9.]
Players have similar consequential scores information all recorded on their
character sheet. In the heat of the moment, players like to have the
ability to look quickly and easily at their character sheets to determine what
they can and simply cannot do, such as to open the door, [n.42: PH, supra note
8, at 9.] bend the bar, [n.43: Id.] lift the gate, [n.44: Id.] dodge the arrow,
[n.45: Id. at 11.] hit the goblin, [n.46: Id. at 9, 11; DMG, supra note 6, at
74-75.] or seduce a (hopefully) newfound paramour. [n.47: PH, supra note 8, at
13; DMG, supra note 6, at 63.] DMs tend to issue standardized character
sheets. Alternatively, experienced players might have favorite character sheet
forms. The design of a good character sheet is an art unto itself, and (once
upon a time) the subject of much discussion on the Internet. Character sheets
extensively incorporate D&D terminology. TSR specifically targeted both
standard form character sheets and ones that individually describe a single
character. "[A]ny items created without a specific license are infringements
of TSR copyrights. Such items include (but are not limited to)... any
modifications which contain elements from our copyrighted properties, including
characters... [and]... elements of the gaming system, such as ARMOR CLASS, HIT
DICE, and so forth." [n.48, TSR, supra note 3.]
III. Analysis
The fortunes of the law of copyright have always been closely
connected with freedom of expression, on the one hand, and with
technological improvements in means of dissemination, on the other.
Successive ages have drawn different balances among the interest of
the writer in the control and exploitation of his intellectual
property, the related interest of the publisher, and the competing
interest of society in the untrammeled dissemination of ideas.
[n.49: Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417, 431 n.12 (1984) (quoting B. Kaplan, An Unhurried
View of Copyright, vii-viii (1967) (foreword)).]
A. The Question Presented
Let us assume that TSR owns valid copyrights in D&D. [n.50: In truth, the
copyrightability of D&D as a game is quite suspect. Anti-Monopoly, Inc. v.
General Mills Fun Group, 611 F.2d 296, 300 (9th Cir. 1979) (explaining
"business ideas, such as a game concept, cannot be copyrighted") (citing Baker
v. Selden, 101 U.S. 99 (1880)); Morrissey v. Procter & Gamble, 379 F.2d 675
(1st Cir. 1967) (refusing to hold defendant liable for nearly identical contest
game rules since the game itself was not copyrightable). Commentators describe
Morrissey as the "germinal merger case" for the doctrine that holds one cannot
copyright expressions that effectively merge with always-uncopyrightable ideas.
Donald S. Chisum & Michael A. Jacobs, Understanding Intellectual Property Law
4-26 (1992).] Let us further assume that creations made in the D&D system are
derivative works in the legal sense of the term under the Copyright Act of
1976. [n.51: 17 U.S.C. ss. 101-810 (1992). "A 'derivative work' is a work based
upon one or more pre-existing works, such as a... fictionalization,
condensation, or any other form in which a work may be recast, transformed, or
adapted. A work consisting of editorial revisions, annotations, elaborations,
or other modifications which, as a whole, represent an original work of
authorship, is a 'derivative work. 17 U.S.C. s. 101.] Normally, under s. 106
of the Copyright Act an unauthorized derivative work of validly copyrighted
material infringes the copyright holder's exclusive right "to prepare
derivative works based upon the copyrighted work." [n.52: Id. s. 106(2).]
Notwithstanding this law, however, the fair use of copyrighted material will
not count as what would otherwise infringe the copyrights of another. [n.53:
Id. s. 107.] Fair use generically means "to use copyrighted material in a
reasonable manner without the consent of the copyright owner." [n.54: Narell v.
Freeman, 872 F.2d 907, 913 (9th Cir. 1989) (citing Harper & Row, Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 549 (1985)).] However, "since the
doctrine is an equitable rule of reason, no generally applicable definition is
possible, and each case raising the question must be decided on its own facts."
[n:55: H.R. Rep. No. 1476, 94th Cong., 2d Sess. 65 (1976) (hereinafter House
Report).] Let us examine this question in a specific factual context. Is a
D&D character sheet posted on the Internet a fair use of TSR's copyright?
B. Fair Use Under s. 107 of the Copyright Act of 1976
Section 107 of the Copyright Act of 1976 provides:
Nothwitstanding the provisions of section 106, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes of criticism, comment, news reporting, teaching, (including
multiple copies for classroom use), scholarship, or research, is not
an infringment of copyright. In determining whether the use made of
a work in any particular case is a fair use the factors to be
considered shall include --
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(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.
[n.56: 17 U.S.C. s. 107.]
Section 107 of the Copyright Act "is intended to restate the present
judicial doctrine of fair use, not to change, narrow, or enlarge it in any
way." [House Report, supra note 55, at 66.] Section 107 adds nothing. We must
look to the common law judicial doctrine to understand the words of the
statute.
C. The Common Law Development of the Fair Use Doctrine
The fair use doctrine is older than the nation. As far back as the
Enlightenment, the great English jurist Lord Mansfield propounded:
We must take care to guard against two extremes, equally
prejudicial; the one, that men of ability, who have employed their
time in the service of the community, may not be deprived of their
just merits, and the reward of their labor and ingenuity; the
other, that the world may not be deprived of improvements, nor
the progress of the arts retarded.
[n.58: John Shelton Lawrence, Copyright, Fair Use and the
Academy, in Fair Use and Free Inquiry 3, 9 (John Shelton
Lawrence & Bernard Timberg eds., 1989).]
United States Supreme Court Justice Story firmly estabished the fair use
doctrine on American shores in the famous early United States Circuit Court
case of Folsum v. Marsh. [n.59: Folsum v. Marsh, 9 F. Cas. 342 (C.C.D. Mass.
1841) (No. 4901).] To this day, the Supreme Court still relies on gems of
Justice Story's analysis, [n.60: See, e.g., Campbell v. Acuff-Rose Music, Inc.,
114 S.Ct. 1164 (1994) (claiming Justice Story in Folsum "distilled the essence"
of fair use law).] such as the following:
In short, we must often, in deciding questions of this sort, look to
the nature of the objects of the selections made, the quantity and
value of the materials used, and the degree in which the use may
prejudice the sale, or diminish the profits, or supersede the
objects, of the original work. [n.61: 9 F. Cas. at 348.]
It took the Supreme Court well over a century after Folsum to hear and reach a
decisive conclusion on a fair use case. In the first two cases the Supreme
Court heard on the issue, the Court failed to reach a majority. The Court
deadlocked, twice in a row. [n.62: Williams & Wilkins Co. v. United States, 487
F.2d 1345 (1973), aff'd by default by an equally divided Court, 420 U.S. 376
(1975) (libraries photocopying journals); Benny v. Loew's Inc., 239 F. 2d 532
(9th Cir. 1956), aff'd by default by an equally divided Court, 356 U.S. 43
(1958) (televised parody of copyrighted movie).]
1. Supreme Court Fair Use Jurisprudence
(a) Sony Corp. of America v. Universal City Studios, Inc.
Finally, after Congress already had codified the fair use doctrine in s. 107,
the Supreme Court heard Sony Corp. of America v. Universal City Studios, Inc.
[n.63: 464 U.S. 417 (1984).] Sony involved videocassette recorder (VCR) owners
who had taped television shows without the consent of the shows' producers. [n.
64: Id. at 422. The Court refers to VCRs as videotape recorders, or VTRs.]
Universal Studios and Walt Disney Productions sued Sony of America for
contributory infringement. [n.65: Id. at 435-39.] Sony VCR owners taped shows
produced by Universal and Walt Disney, and these plaintiffs claimed Sony should
be liable contributorily for this direct "infringement" by Sony's VCR
customers. [n.66: Id.] If the Sony VCR customers did not infringe the
plaintiffs' copyrights directly, then Sony could not have contributed to any
infringement. The question came down to whether or not VCR owners who taped
shows at home so they could watch them at another time (timeshifting) fairly
used the plaintiffs' copyrights. [Id. at 448-49.]
The Court looked first to the purpose and character of the Sony VCR owners'
use, the first of the four nonexclusive factors listed in s. 107. [n.69: 17
U.S.C. s. 107(1).] The Court looked favorably on home timeshifting and counted
it as a noncommercial use. Just as a commercial use counts negatively in a
fair use analysis, noncommercial use more likely indicates potentially fair
use. [n.70: Sony, 464 U.S. at 449.] The second fair use factor, the nature of
the copyrighted work, [n.71: 17 U.S.C. s. 107(2).] also indicated in favor of
fair use in the Court's analysis. The Court characterized television programs
as "work which the [Sony VCR owners] had been invited to witness in its
entirety free of charge." [n.72: 464 U.S. at 449.] One need not stand
favorably on all four fair use factors in s. 107 to use copyrighted material
fairly. In Sony, the Court found against the Sony VCR owners in regards to the
third s. 107 factor, [n.73: Id. at 449-50.] the amount of the copyrighted work
used. [n.74: 17 U.S.C. s. 107(3).] The Sony VCR owners taped entire shows, but
the Court deemed the nature of timeshifting and the copyrighted works to negate
any adverse effects on the fair use analysis which copying whole shows might
have. Timeshifting merely enabled viewers to watch programs at their
convenience. The programs, as freely transmitted broadcasts, did not carry
conditions that forced viewers to watch only at prescribed times.
Finally, the Court applied the fourth factor of the fair use test, [n.75: Sony,
464 U.S. at 450-51.] the market effect of the unauthorized use on the value of
the copyrighted work. [n.76: 17 U.S.C. s. 107(4).] The Court held, "A
challenge to a noncommercial use of a copyrighted work requires proof either
that the particular use is harmful, or that if it should become widespread, it
would adversely affect the potential market for the copyrighted work." [n.77:
464 U.S. at 451.] The plaintiffs failed to meet this burden of proof at the
trial level. [n.78: Id. (citing 480 F. Supp. 429, 467 (1979)).] On the issue
of present harm, the Supreme Court quoted the district court, "'Most of the
plaintiffs' predictions of harm hinge on speculation about audience viewing
patterns and ratings, a measurement system which Sidney Sheinberg, MCA's
president, calls a "black art" because of the significant level of imprecision
involved in the calculations.'" [n.79: Id. at 452 (quoting 480 F. Supp. at
469).] The Supreme Court concurred with the district court's findings of any
potential harm as speculative, minimal at best. [n.80: Id. at 454 (citing 480
F. Supp. at 467).] The Supreme Court concluded Sony VCR owners who engage in
unauthorized timeshifting fairly use television producers' copyrights. [n.81:
Id. at 456.]
(b) Harper & Row, Publishers, Inc. v. Nation Enterprises
In contrast to Sony, the Supreme Court decided against a fair use finding in
Harper & Row, Publishers, Inc. v. Nation Enterprises. [n.82: 471 U.S. 539.] In
Harper & Row, the publishers of The Nation magazine illicitly obtained an
advance copy of soon-to-be-published excerpts from ex-President Gerald Ford's
book of memoirs. The Nation abridged the excerpts, complete with snippets of
quotations from Ford's book, and preemptively published the abridgement before
its competitor, Time magazine, published the excerpts in full. Time
consequently cancelled its contract with Harper & Row to publish the excerpts.
[n.83: Id. at 542.] As publisher of the book, Harper & Row retaliated
furiously and sued The Nation for copyright infringement. [n.84: See id.]
The Supreme Court noted The Nation admitted some thirteen percent of its
article, about three or four hundred words, reproduced Ford's original language
verbatim. [n.85: Id. at 548-49.] The Court characterized the purpose and
character of the use by The Nation as news reporting, [n.86: Id. at 561.] a use
long-favored and famously protected by the First Amendment. [n.88: U.S. Const.
amend. I.] On the other hand, the nature of the copyrighted work was as a work
not yet published by either Harper & Row or Time magazine. The scope for a
fair use is significantly narrower for unpublished works. [n.89: 471 U.S. at
563-64.] The quantity of the portion of the text used by The Nation may not
have amounted to much of Ford's book, but the substantiality, or quality, of
the amount used counted for far more. The Nation culled the most newsworthy
sections right out of the book. [n.90: Id. at 564-65.] The Court then turned
to the market effect of the use by The Nation. "This last factor is
undoubtedly the single most important element of fair use." [n.91: Id. at 566.]
Harper & Row lost $12,500 when Time cancelled its contract with Harper & Row to
serialize Ford's book. [In.92: Id. at 567.] "Rarely will a case of copyright
infringement present such clear-cut evidence of actual damage." [n.93: Id.
(emphatically reversing the United States Court of Appeals for the Second
Circuit on this point).]
Harper & Row exemplifies the limits of the First Amendment as a cloak for an
unfair use. Harper & Row also reinforces the point made in Sony that all four
factors in the fair use analysis need not indicate solely in favor or against a
finding of fair use. The factors tend to predominate one way or another, but
both cases had some factors in favor and some against a fair use finding.
[n.94: See supra text accompanying note 73 for the discussion of this point in
the Sony case.] In the end, the Supreme Court in Harper & Row held that The
Nation illegally and unfairly used an unpublished copyrighted work owned by
Harper & Row. [n.95: 471 U.S. at 569.]
(c) Stewart v. Abend
As in Harper & Row, [n.96: Id. at 541.] Justice O'Connor again wrote the fair
use opinion for Stewart v. Abend. [n.97: 495 U.S. 207, 211 (1990).] Defendants
James Stewart, Alfred Hitchcock (via successors), MCA, and MCA's subsidiary
Universal Film Exchanges re-released a version of their 1954 movie Rear Window
in the early 1980s. [n.98: Id. at 213.] The movie was based on a story
originally published in 1942 in Dime Detective Magazine as "It Had to Be
Murder." [n.99: Id. at 211.] Though the defendants had permission to make the
original movie, they did not have a license to re-release it. [n.100: Id. at
213.] Among other defenses, the defendants asserted fair use. [n.101: Id. at
236.]
Writing for the Court, Justice O'Connor deemed the re-release of Rear
Window a disfavored commercial use, one worth $12 million by all accounts.
[n.102: Id. at 237.] Second, Justice O'Connor characterized "It Had to Be
Murder" as a creative work, and therefore less likely to be found fairly used
than a factual work. [n.103: Id.; Robert A. Gorman & Jane C. Ginsburg,
Copyright for the Nineties 549 (1993).] Third, Stewart illustrates the
principle elucidated in Harper & Row; the quality of the portion of the
copyrighted work matters at least as much as the quantity used. The defendants
claimed "only" twenty percent of the movie's story line came from "It Had to Be
Murder," but Justice O'Connor demurred, "The motion picture expressly uses the
story's unique setting, characters, plot, and sequence of events." [n.104: Id.
at 238.] Fourth, "[c]ommon sense" dictated a finding the re-release of Rear
Window hurt the plaintiff's ability to market new versions of "It Had to Be
Murder." [n.105: Id.] Stewart presented a clear case of an unfair use on all
four factors as codified in s. 107: a commercial, presumptively unfair use of
the key parts of a creative work, resulting in obvious harm to the
marketability of a copyright.