Sometimes I write about really serious copyright topics, like the economic impact of piracy or proposed changes in copyright legislation, and sometimes the blog posts are more whimsical (monkey selfie), light-hearted (rubber ducky), or practical (recipes), but they all deal with real copyright issues. I will let you decide which category this blog falls into, the serious or the whimsical.
Earlier this year, just pre-COVID, my wife and I travelled north on Vancouver Island to Parksville, BC, a beach resort where, when the tide goes out, the sand dunes and tidal pools extend for at least a kilometer out to sea. It’s a great place to beach-comb and to build sandcastles. In fact, Parksville hosts an annual Sand Sculpting Competition as part of its Beach Festival held every July and August. Last year over 100,000 people visited and viewed the sculptures. (This year it has been cancelled owing to the pandemic). And sculptures they are. Gone are the days of your grand-dad’s sandcastle. These are sculptures that demonstrate true artistry, with subjects ranging from Icarus flying too close to the sun to sea monsters to fairy princesses. They are truly works of art, as you can see by clicking here. And a work of art ought to be protected by copyright, right?
To be eligible for copyright in the United States and in most countries a work needs three key elements (1) fixation (2) originality and (3) expression (of an idea). Originality requires that the work be created by the author and must possess “at least some minimal degree of creativity” (according to the US Copyright Office-USCO). Expression of an idea means taking a generic idea (such as a vase of flowers) and expressing that idea in a specific, creative way (such as a painting of the flowers).
Fixation is a bit more complicated. Again, quoting the US Copyright Office with regard to US law, fixation requires that a work be “fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid of a machine or device.” In Canada, there is no specific requirement for fixation, although it is implicit.
As to how it is fixed, in the US the author’s expression may be fixed “in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form.” In other words, the exact form of fixation is not prescribed, but some activities are clearly not fixed. A song that you compose in your head and perform for a live audience is not subject to copyright protection, but if you write down the music or record the performance of the song, that constitutes fixation. Therefore as long as your song meets the other basic requirements, it can be copyright protected. Ironically, if someone makes an unauthorized recording of your live performance, this can constitute fixation allowing you to claim copyright even though the recording itself is an infringement. Using the same criteria, a story that you tell someone does not qualify for copyright protection unless it is written down or recorded, but if it is “fixed” in some way the story (work) can qualify for copyright protection if it meets the originality test.
What about a work that exists in a physical form but that form is not permanent? Like a sand sculpture. Does that form constitute fixation? Could a sand sculpting artist copyright their work for its original design and shape?
The USCO provides the following guidance that a work may not be protected by copyright; “if the work or the medium of expression only exists for a transitory period of time, if the work or the medium is constantly changing, or if the medium does not allow the specific elements of the work to be perceived, reproduced, or otherwise communicated in a consistent and uniform manner. A sand sculpture, particularly one below the high tide mark, is certainly transitory. One that is built higher up the beach, in a protected area (like the ones at Parksville) is certainly less transitory but it wouldn’t survive a good rainstorm. (It doesn’t rain in Parksville in the summer, but if it did…..). What if the sculptor added a few secret ingredients, like a wee bit of Portland cement, to the moist sand? Now that could be permanent. But would it be a “sand” sculpture? It’s a copyright conundrum.
The website New Media Rights, in a non-legal FAQ blog posting for creators discussing “What Can and Cannot be Copyrighted”, gives a sandcastle or an ice sculpture as examples of objects that cannot be protected by copyright because they are not fixed;
“’Fixed’ work is defined as a work that is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” For example, a sandcastle or ice sculpture that you worked all day on would probably not be considered fixed so it’s not copyrightable. However, as soon as you take a photograph of your sandcastle or ice sculpture, thus fixing it in reproducible medium other than your own memory, the image and design of the sandcastle can receive legal protection.”
There are two important points here. First they hedge their advice on whether these objects are subject to protection by copyright, by saying they “probably” would not be considered for protection. They are smart to hedge because very little is really definitive when it comes to copyright. Then they make the point that to obtain legal protection, all that needs to be done is take a photograph of the image. This will “fix” it since photographs qualify for copyright protection. However, the photograph is a separate work, not the original work so what if someone else took the photograph? They would then own the copyright in that photo, so it is important that if you are the sculptor, you take the photograph.
OK, taking a photograph of the work is an easy out, but let’s chase this concept all the way down the rabbit hole. Suppose that no photographs were taken, but yet the author still wants to protect their creation from unauthorized copies. Could a sandcastle or an ice sculpture be sufficiently permanent to be fixed?
I remember well the ice sculpture festival “Winterlude” that takes place in the depths of every winter in Ottawa, where I lived for a few years. Quebec City also has a well-known annual ice sculpture festival. The creations are truly remarkable as you can see here. Of course one day in late spring it will warm up in Ottawa (the world’s second coldest capital city, by the way, exceeded in frigidity only by Ulaan Bator, Mongolia’s capital), and the sculptures will melt. But what if the sculpture was carved at the North Pole, or in Antarctica, in a location that will always be subzero? (Until global warming allows palm trees to grow there). Surely then it would be fixed? What about an ice sculpture created for a hotel banquet table setting which, after it has been displayed, is then put back in the hotel’s freezer? It would be fixed as long as the freezer works, but perhaps not permanent. But “permanence” is not required for fixation. Law professor Marc Randazza pondered this question a few years ago in this blog posting; he concluded that an ice sculpture was fixed.
The issue of fixation has been tested in the courts. The well-known law firm of Bird&Bird reports on a case in the UK where the High Court found copyright infringement of designs debossed in foundation powder pallettes. Once put on a consumer’s nose or cheeks, the design is gone in a puff of powder. But in Britain, under the Copyright, Designs and Patents Act of the UK;
“Copyright in literary, dramatic or musical works does not subsist until the work is recorded in writing or otherwise (section 3(2), CDPA). Artistic works are not explicitly required to be fixed in a tangible medium.”
According to the UK court, as reported by TwoBirds website;
“The designs could be compared to copyright-protected sand sculptures that would be washed away by the tide. If the sculpture was not so protected, the artist would be unable to claim the copyright in a photograph of it. Similarly, a bespoke wedding cake that later was eaten could still constitute a copyright work, as could an ice sculpture that had melted. The court emphasised the unique position of copyright in an artistic work, in that it does not explicitly require permanence.”
So in the UK at least, it doesn’t matter if the work has disappeared as long as it was in a tangible form at one point.
On the cake design issue, a US law firm looked at a real situation where the cake for Barack Obama’s inauguration was copied by the Trump Administration, which ordered an exact replica but from a different bakery. The question was whether the original cake designer could sue for copyright infringement. This article pointed out that for legal action to be taken on a copyright case in the US, the copyright has to be registered, which it wasn’t, and questioned whether the baking of a layer cake and decorating it with designs using the Great Seal of the United States etc. was sufficiently original. We will never know. But the “transitory nature” of the cake did not seem to be an issue.
I can go on. Chalk art is an interesting topic. It is probably transitory, like a sandcastle, but could last for a considerable period of time if it was in a protected setting. I found an article online regarding chalk art and copyright but it was a warning to chalk artists not to infringe the copyright of others by using unlicensed images as subjects of their art, rather than arguing that the chalk designs were protectable works of art in their own right.
Then there is the “plating” (arrangement) of food on a plate by a chef. The California Law Review (May 2020) contains a well-researched article arguing that an artistic plating should qualify for copyright protection because it meets the standard of originality and expression despite the banality of the underlying ingredients and the fact that the food arrangement will disappear when eaten. On fixation, one argument advanced is that because the food plating arrangement is repetitively performed, night after night, the fact that it is consumed nightly does not mean that is not sufficiently stable to be “perceived, reproduced, or otherwise communicated for a period of more than transitory duration”, in the same way that an argument can be made for copyrighting of “conceptual art” (installations). It’s a valiant argument but to date has not been successful in court. In the only similar case cited (Kim Seng Co. v. J & A Imports, Inc), in which copyright was claimed in a specific bowl of Vietnamese food as a three-dimensional structure, the claim failed because the dish was ruled to be neither an original work of authorship nor fixed in a tangible medium.
How about fireworks displays? According to the IP law firm of Suiter Swanz, Can you Copyright a Firework Show?, the answer is “no” because it is not fixed in a tangible medium of expression. On the issue of photographing a fireworks display this blog notes that;
“the fact that uncopyrightable subject matter has been fixed through reproduction does not transform the underlying subject matter into copyrightable material. For example, a photograph or video of a fireworks display may be a copyrightable fixation of the photographic image(s) of the fireworks display, but the fireworks themselves do not constitute copyrightable subject matter… Since a firework display is not recorded on a fixed medium it does not receive copyright protection and it can be photographed but not always recorded/filmed. The photograph taken of the display can be protected as an original photographic/artistic work, with the copyright typically owned by the photographer.”
As you can see, this is complex stuff! There are variations between different legal systems in terms of fixation, and in most cases, the issue is rhetorical rather than practical. The courts are not exactly inundated with cases questioning whether ice sculptures or sand sculptures are fixed and thus subject to copyright, but legal questions involving fixation do occur. These include questions such as whether ephemeral copies–temporary reproductions lasting just a few micro-seconds that are required for technological processes, like broadcasting–are subject to copyright. In Canada, the courts have held that they are reproductions under the Copyright Act; in the US, the situation is just the opposite, when it comes to broadcasting. Even though there is an ephemeral use exception for broadcasting in US law, there is no general ephemeral use exception in the US. In the EU, there is. As I said, it’s complicated.
So what explains my fixation with fixation? In my defence, all I can say is that I find it fascinating to explore the nooks and crannies of copyright law and its various interpretations. I know it’s all a bit arcane, but I hope you enjoyed the journey.
© Hugh Stephens 2020. All Rights Reserved.