Re: Copyrights as Property (Was: Copyright Extension Bill Passes Congress)

On 10/28/98, Benedict A. Monachino <bam[_at_]p-a.com> wrote:
>
> I admit to not following this thread very closely, so I apologize in
> advance if the following issues were addressed in an earlier posting.
>
> Mr. Phillips thesis is that "copyrighted WORKS either are not property
> at all, or they are PUBLIC property."

I think a great deal of the confusion surrounding this discussion stems from terminology, not substance. Under U.S. law, there is a distinction between ownership of a COPYRIGHT in a work (an intangible right), and ownership of a COPY of that work (a tangible object).

A WORK is an intangible intellectual creation that is protected by copyright law once it is fixed in a tangible medium of expression. Any tangible object in which the work is fixed (including the original) is called a COPY (or a phonorecord, if it is a sound recording. For ease of reference, I will refer to both as copies.) A COPYRIGHT is the bundle of legal rights in the WORK. The copyright owner has the exclusive right to reproduce, distribute, publicly perform, publicly display, and make derivative works of, the WORK, subject to limitations in the statute. One such limitation is the first-sale doctrine, which states that once the copyright owner (or his licensee) parts with ownershp of a COPY of the work, the owner of that COPY can re-transfer that COPY without violating the distribution right.

I believe Mr. Phillips <hrothgar[_at_]telepath.com> uses this terminology incorrectly (or at least in a confusing manner). He writes:
>
>
> That the COPYRIGHTS are property does not mean that the WORKS are
> property. Even if the works themselves are property, the owner of
> the copyright is not necessarily the owner of the work.

The phrase "owner of the work" is ambiguous. The owner of the COPYRIGHT is the owner of legally-protected rights in the WORK, and can therefore said to be the "owner" of the WORK. The owner of any particular copy (or the original) owns a COPY of the WORK, but does not own the copyright. Nonetheless, one who owns a copy can also be said to be an owner of the WORK, since he/she owns a copy of the work. It would greatly enhance the clarity of the discussion, therefore, if we avoided this ambiguity and referred only to the owner of the copyright or the owner of a copy, rather than to the owner of a "work."

If Mr. Phillips means to say that a "copy" (a tangible object) is not property, I disagree. If Mr. Phillips means to say that a "copyright" (a set of intangible rights) is not property, I also disagree. A copyright is treated as personal property in innumerable ways. But if Mr. Phillips means to say that the copyright owner does not own all of the rights in a work (because the public also "owns" rights in the work, such as the right of fair use, the right to use ideas, etc.), then I agree. That is what I understood him to mean, but I admit I had a hard time following his argument.

Mr. Monachino writes:
>
> Is this to say that if a genius sculptor creates a statue that is
> universally recognized as a masterpiece, and the sculptor sells the
> statue to a wealthy individual for, lets say, $2,000,000 (but retains
> the copyright in the statue), then the purchaser has spent $2,000,000
> on an item that may not be protectable/transferrable as property?
> What, then, is the individual's interest in the statue? If the statue
> appreciates in value, and the individual sells it, are there tax
> implications for the gain on the sale of an item that is not property?
> If the statue is public property, then has the individual spent
> $2,000,000 to effectively become a trustee (with all appurtenant
> fiduciary duties) who holds the statue for the benefit of the public?
> If so, what happens to the individual if the statue becomes damaged?
> Can the public then sue the individual for damages to the item which
> he paid $2,000,000 to acquire? Similarly, what are the tax consequences
> to the individual who sells "public property" if it has appreciated
> in value. Does the individual even have the authority to sell public
> property without permission from the appropriate governmental
> authority.

Under U.S. law, the wealthy individual owns a COPY of the work, while the sculptor retains the copyright in the work. The COPY is treated as personal property for virtually all purposes, including transferrability and taxation. In this instance, however, the owner of the copy does have the fiduciary obligation (to the author, not to the public) not to destroy or modify the original work (the COPY) under 17 USC sec. 106A (Visual Artists Rights Act, or VARA).

> What about these issues in a less dramatic example:
>
> I go the local bookstore to buy a copy of Stephen King's latest
> book. Clearly, Mr. King's books are all currently protected by
> copyright (the question of who owns that copyright is not
> pertinent to this discussion). I plunk down my $5 and walk out
> with a paperback book, which is a copyrighted WORK. Don't I own
> that book as an item of personal property? If not, what ownership
> interest do I have as a result of my purchase? Can any member of
> the public come and take it from me, claiming that the work is
> public property which should be accessible to all? How is that
> book treated by my estate when I die? Does the book escheat to
> the state as public property? Do my heirs and beneficiaries
> have the right to items that are not property?

Once again, you own the book, which is a COPY of a work. You own the "work" only in a lay sense; you do not own the copyright in the work. Your COPY is part of your personal property, and is treated as personal property for all purposes. [For the reasons set forth above, I disagree with your terminology. A paperback book is not a copyrighted work; a paperback book is a COPY of a copyrighted work, i.e., a tangible object in which a reproduction of the copyrighted work is fixed.]

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Thu Oct 29 1998 - 23:26:23 GMT