When is it acceptable, and legal, to copy someone else’s photo, or recipe?
Borrowing from Larry Lessig, there are three constraints on copying: social disapprobation (norms), technological impediments (code), and fears of copyright infringement liability (law). We see two case studies in today’s Washington Post and New York Times. First, Missy Chase Lapine has sued Jessica and Jerry Seinfeld for copyright infringement and defamation. Her allegations are that Mrs. Seinfeld’s cookbook unlawfully copies her ideas, and recipes, about hiding nutritious ingredients in children’s foods (kids, inspect your brownies carefully!), and that Mr. Seinfeld slandered her as a “wacko” on David Letterman’s show. Second, the Post looks at instances of corporations and mass media entities using (copyrighted) photos without permission. The two articles reinforce how much copyright law and popular conceptions about copyright are at odds.
Lapine’s lawsuit looks, well, wacky. (Please note: I haven’t yet read the complaint, and I haven’t read either cookbook.) First, “brazen plagiarism” may be ugly and unethical, but it’s not necessarily illegal. Lifting someone else’s ideas may be poor scholarship, but copyright’s idea / expression dichotomy generally prevents you from obtaining legal protection for ideas. (That’s the job of patent law.) This takes care of Lapine’s allegations about Seinfeld lifting her “philosophy” and “premise.” Second, as lawyer Steven Shaw notes in Slate, copyright protection for recipes is thin, if not non-existent. (Shaw does make some errors in his analysis; though – you don’t need to sell copies to violate copyright law (just copying protected expression is enough, under 17 USC 106(1), and distributing copies for free violates 17 USC 106(3)); paraphrasing can certainly constitute infringement if you’re copying protected elements such as characters (as McDonald’s did in one set of TV commercials – see Sid & Marty Krofft Television Productions v. McDonald’s, 562 F.2d 1157 (9th Cir. 1977)); and Seinfeld could have had pre-publication access to Lapine’s cookbook that would have enabled her to copy it.) So, to prevail, Ms. Lapine needs to show 1) that she has original expression (not ideas) in her cookbook, and 2) that Mrs. Seinfeld has copied it. Seems like a tall order. As for defamation, calling someone a “wacko” is classic opinion, protected by the First Amendment; it’s a different story if Seinfeld had claimed she kidnapped the Lindbergh baby or something similar. So, despite the claims, this doesn’t look like a copyright foul.
The photo story is different altogether. The Internet makes it exceedingly easy to copy, and use, digital photos. Apparently Virgin Mobile Australia, Babble, and even Microsoft have done so, without regard to copyright law’s niceties. Many of the violators blamed interns for the unlawful use. This is a nice piece of spin, but it doesn’t matter: copyright infringement is a strict liability offense (the law doesn’t care whether you meant to do it or not), and an employer would almost certainly be liable for an intern’s infringement under a theory of vicarious liability. The problem here is partly social: increasingly, we think that because something’s available on the Web, it’s permissible to use it. Not so. By default, copying a photo (even downloading it to one’s hard drive) violates copyright; licenses such as those offered by Creative Commons permit some uses, but not others. So, easy copying, and an ethos that doing so isn’t really wrong, have caused even corporate titans to violate copyright.
What’s the lesson? Well, as my colleague Jessica Litman points out in her book Digital Copyright, copyright law and social norms around copying are increasingly divergent. Even IP-oriented companies can run afoul of the law. But copyright doesn’t cover everything, and it can be abused by authors who are unhappy that they didn’t make it onto Oprah. Your grandmother’s recipe for noodle kugel may be a wonderful invention, but it isn’t protected by copyright. In the end, I think that these articles show how little we understand the ever-shifting contours of the law’s restrictions on the use of creative expression. That’s bad for ordinary people, though it does keep those of us who are IP lawyers in business…