Sandra Day O’Connor’s Copyright Legacy
On December 1, 2023, the world lost legal trailblazer and former Supreme Court Justice Sandra Day O’Connor, who was the first female Justice to serve on the nation’s highest court. Over her 25 years of service as a Supreme Court Justice, O’Connor presided over and penned several major SCOTUS decisions, including a few landmark copyright cases.
Harper & Row Publishers, Inc. v. Nation Enterprises
One of only a handful of SCOTUS cases dealing with fair use, Harper & Row is an oft-cited opinion that continues to influence fair use analyses. O’Connor penned the opinion, which established and reaffirmed important principles in fair use jurisprudence, including that the third fair use factor involves a qualitative inquiry of whether the “heart of the work” was taken from the underlying copyrighted work, and that infringement of an unpublished work weighs against fair use. The case involved a fair use defense after verbatim excerpts were “scooped” and copied by The Nation Magazine from an unpublished manuscript of former President Ford’s memoir, which the Court eventually held did not qualify for the fair use exception.
Leading up to its fair use analysis, the Court confirmed that the Framers of the Constitution “intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” O’Connor’s decision goes on to issue a prescient warning against overbroad fair use notions, explaining that “to propose that fair use be imposed whenever the ‘social value [of dissemination] … outweighs any detriment to the artist,’ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.”
Also coloring the fair use analysis was the fact that the manuscript was unpublished. This was a huge no-no in the Court’s eyes because it conflicted with the foundational right of a copyright owner to first publication of the work. For example, it affected the first fair use factor analysis where the Court weighed the analysis in favor of the publishers, noting that there is no categorical fair use exemption for “news reporting” and that mere “scooping” of news to supplant and profit from the first publication rights of the publisher without “paying the customary price” could not weigh this factor in favor of fair use.
One of the most important takeaways from the decision comes from the Court’s analysis of the third fair use factor, which it also weighed in favor of the manuscript publisher. There, the Court focused on how The Nation Magazine copied the “heart” of a work, the most powerful passages which qualitatively embodied Ford’s distinctive expression. Importantly, the Court emphasized that the third factor analysis does not look at the impact of the copyrighted work on the infringing work but looks at the amount and substantiality taken of the infringed copyrighted work itself.
The opinion in Harper & Row underscores the value and importance of upholding the exclusive rights of a copyright owner under the Copyright Act, which O’Connor saw as the key to fueling the engine of free and creative expression as intended by the Constitution.
Feist Publications, Inc. v. Rural Telephone Service Co., Inc.
In 1991, O’Connor penned one of the most fundamental decisions in copyright law, in which the Court held that the telephone books in the case did not exhibit the minimal creativity needed to fulfill copyright’s originality requirement. Feistis constantly relied upon today to illustrate the minimum creativity standard for originality and that copyright law protects particular selection and arrangements of facts in compilations (i.e., the expressions), but not the facts themselves.
The Court first noted that while facts, like names, telephone numbers, etc., are not protected by copyright because they do not “owe their origin to an act of authorship,” factual compilations may be protected because these works may “entail a minimal degree of creativity” in the way a compilation author chooses which facts to include, in what order to place them, and how to arrange the data for the audience.
O’Connor’s opinion highlighted that while copyright’s originality requirement was not hard to meet, the expression must not be “so mechanical or routine as to require no creativity whatsoever.” In this case, the Court found that the alphabetical ordering of contact information in a telephone book fell short of the minimal creativity standard and instead was part of the extremely narrow category of works that failed to meet the low threshold of originality. Importantly, the opinion warned future readers not to misconstrue the opinion as “demeaning Rural’s efforts in compiling its directory, but rather as making clear that copyright rewards originality, not effort.” Although the Court rejected “industrious collection” or “sweat of the brow” efforts as the basis for copyright protection, it did not fully reject the notion that all “sweat of the brow” efforts would never be protected by copyright— as long as the resulting work had the requisite minimal creativity under copyright’s originality standard.
Stewart v. Abend
In 1990, O’Connor delivered the opinion in Stewart v. Abend, a case involving thorny issues of the right to renew a copyrighted work to extend the term of protection. Works created under the 1906 Copyright Act were protected for 28 years, after which the author was required to renew the copyright to extend the term of protection for another 28 years. The question before the court was whether the owner of a derivative work infringed the rights of a successor copyright owner of the underlying work by continuing to distribute and publish the derivative work during the renewal term of the pre-existing work without authorization from the successor copyright owner.
The Court held that if the author dies before being able to renew the copyright term, the statutory successors are entitled to the renewal rights in the preexisting work and an owner of a derivative work would need to secure rights from the new statutory successors. The Court agreed that any preexisting assignments made by the author regarding renewal rights were ineffective because the author died and thus could not exercise the renewal right, so that the renewal right would naturally flow to the author’s statutory successors. This meant that the owner of a derivative work would need rights from the statutory successors who renewed the copyright to continue exploiting the derivative work during the renewal period of the underlying work. Speaking for the Court, O’Connor’s opinion examined the statutory language and legislative history of the renewal right to stress how Congress intended to “give the author a second chance to obtain fair remuneration for his creative efforts and to provide his family, or his executors absent surviving family, with a “new estate” if he died before the renewal period arrived.”
Reviewing the copyright law opinions which former Justice O’Connor penned for the High Court, it is clear that she understood the Constitutional vision that copyright law serve as the engine to fuel creativity and expression of creators and copyright owners and that recognizing and upholding these property rights were vital. From these foundational cases, O’Connor’s impact and legacy is sure to continue to reverberate throughout many copyright cases to come.
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