Interim Copying and Morphing under the Copyright Act

Inputting data into a computer is generally regarded as making a "copy" within the meaning of Section 106 of the Copyright Law. Thus, the National Commission on New Technology Uses of Copyrighted Works stated, "The 1976 Act, without change, makes it clear that the placement of any copyrighted work into a computer is the preparation of a copy." Final Report of the National Commission on New Technological Uses of Copyrighted Works 12 (July 31, 1978). Accord 2 Nimmer on Copyright Ù 8.08[A], at 8-104 (1994) (hereinafter "Nimmer"); MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993); Bellsouth Advertising & Pub. Co. v. Donnelley Info. Pub., Inc., 933 F.2d 952, 958 (11th Cir. 1991), vacated on other grounds, 977 F.2d 1435 (11th Cir. 1992); Rand McNally v. Fleet Management Sys., Inc., 600 F. Supp. 933 (N.D. Ill. 1984); West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). (While some commentators have speculated that merely inputting data into RAM (which is transitory) is not a fixation and therefore does not constitute making a copy. Cf. Mura v. Columbia Broadcasting System, 245 F. Supp. 587, 590 (S.D.N.Y. 1965) (evanescent reproduction of hand puppet on television screen is not a copy). This line of reasoning is unhelpful in the context of morphing because, in the course of systematic scanning and morphing, it is certain that there will be fixation on a hard drive or server.)

Given that the inputting of digital information probably constitutes making a copy, Nimmer has stated broadly that:

The copy generated is merely preliminary to other uses, but intermediate copying is no less an infringement of the copyright owner's exclusive reproduction right than is "final" copying. The copy thereby generated may be stored solely on the user's computer, but fixation in RAM or on the hard drive may suffice to infringe.

3 Nimmer, Ù 13.05[D], at 13-237. But see J. Beard, Casting Call at Forest Lawn: The Digital Resurrection of Deceased Entertainers, 41 J. Copyright Soc. 19, 33-34 (1993) (indicating that the issue of whether interim copying constitutes an infringement remains an open question); Walker v. Time-Life Films, 615 F. Supp. 430, 434-35 (S.D.N.Y. 1985), aff'd, 784 F.2d 44 (2d Cir.), cert. denied, 476 U.S. 1159 (1986) (declining to compare plaintiff's work with early drafts of defendant's screenplay and holding that the court would consider only those works presented to the public).

The most extensive discussion of the interim copying issue is found in Sega Enterprises. In 1993, the Ninth Circuit stated in the Sega case that "the question of whether intermediate copying of computer object code infringes the exclusive rights granted to the copyright owner in section 106 of the Copyright Act is a question of first impression." 1993 U.S. App. LEXIS 78, at *19. The court noted that, in an earlier case, Walker v. University Books, 602 F.2d 859, 864 (9th Cir. 1979), it had held that the "fact that an allegedly infringing copy of a protected work may itself be only an inchoate representation of some final product to be marketed commercially does not in itself negate the possibility of infringement." The Ninth Circuit then went on to state that:

In light of the unambiguous language of the Act, we decline to depart from the rule set forth in Walker for copyrighted works generally. Accordingly, we hold that intermediate copying of computer object code may infringe the exclusive rights granted to the copyright owner in section 106 of the Copyright Act regardless of whether the end product of the copying also infringes those rights.

Id. at *19. Nevertheless, the Ninth Circuit concluded that the unauthorized copying for the purpose of reverse engineering video game software was excused by the doctrine of fair use:

Because, in the case before us, disassembly is the only means of gaining access to those unprotected aspects of the program, and because Accolade has a legitimate interest in gaining such access (in order to determine how to make its cartridges compatible with the Genesis console), we agree with Accolade. Where there is a good reason for studying or examining the unprotected aspects of a copyrighted computer program, disassembly for purposes of such study or examination constitutes a fair use.

Id. at 26. Accord, DSC Communications Corp. v. DGI Technologies, Inc., 1995 WL 526429 (N.D. Tex. Sept. 1, 1995).

However, in the case of systematic scanning of numerous images, a fair use argument based on necessity would be less likely to succeed. The scanning would not be for the purpose of reverse engineering the underlying images. Rather, it is an expedient to reduce the labor necessary to have artists reinterpret and redraw the copyrighted images in an original way that is not substantially similar to the source. Similarly, a fair use argument based on "transformative use," as recently discussed by the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994), would be difficult to advance in a case of "morphed" images. Even if not substantially similar to the originals, the new images might be held to "supersede" or "supplant" the originals. "Transformative use" requires, rather, that the new work add "something new, with a further purpose or different character, altering the first with new expression, meaning, or message..." Id. at 1171.

Recent cases involving digital "sampling" -- lifting fragments of copyrighted sound recordings for incorporation into new, largely original recordings -- present a parallel, if not precisely analogous, situation. (One major difference is that, in the reported sampling cases, the copied material, however fragmentary and surrounded by original material, remains intact in the end-product; the copying is not strictly "interim.") The courts have consistently found that such sampling is an infringement, even where the new recording as a whole is utterly unlike the original recording. See, e.g., Grand Upright Music Ltd. v. Warner Brothers Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991) (rap song's sampling of short keyboard riff from 20-year-old "easy listening" song was infringement); Jarvis v. A&M Records, 827 F. Supp. 282 (D.N.J. 1993) (finding of infringement may be based on "fragmented literal similarity").

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