A DISCUSSION OF LAW AND JOURNALISM

Copyright Clash at the Cellular Level

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By Dawn Mikulastik

James Joyce is thought by many to have revolutionized 20th century fiction, so it comes as no surprise that biologist Craig Venter decided to quote the writer when he revolutionized the science world and created the first cell with a synthetic genome in 2010.

The synthetic cell was copied from a natural genome, which contains all the hereditary information of an organism, and placed into a host cell. In order to differentiate between the synthetic genomes and the natural genomes, Mr. Venter and his team encoded different ”watermarks” into the new cells, including “To live, to err, to fall, to triumph, to recreate life out of life,” a passage from A Portrait of the Artist as a Young Man. To the delight of the scientific community the cells came to life, but the Joyce estate was not amused and tried to stop the experiment dead in its tracks.

This kind of “watermarking” is nothing new. In fact, according to The New Yorker, scientists have used quotations from sources ranging from the Bible to famous Disney songs to Virgil with no problems of note. But as Discover Magazine reported, Mr. Venter didn’t get off so easy, and received a cease-and-desist letter from the famously litigious estate of the Irish writer. It appears the estate thinks that Mr. Venter’s use of the passage without seeking permission constitutes copyright infringement. In a statement, Mr. Venter defended quoting the line in the synthetic genome and said that he and his team “thought it fell under fair use.” The article mulls over what a decision in favor of Mr. Joyce’s estate could mean if there were to be a lawsuit but doesn’t discuss the likelihood that the court will decide that way.

Fair use allows copyrighted material to be used for such things as criticism, research, teaching, and news reporting. In instances other than these, courts look to four factors to make a determination on whether a particular use is infringing. The factors are purpose and character of use, nature of the copyrighted work, how substantial the use is in relation to the copyrighted material, and the effect of the use on the author’s ability to make money. Unfortunately, using this defense can be a crapshoot, because every court evaluates the factors differently, and it’s never obvious precisely which factor will be weighted more heavily in a particular case.

Just to be clear, Mr. Joyce’s estate hasn’t filed a formal complaint – yet. But even if it does, the case probably wouldn’t make it far enough for Mr. Venter to have to employ the defense of fair use. Because of the nature of the alleged infringing, or synthesizing cells, the size and scale of the use is so small that a court would probably consider it to be de minimis non curat lex, a Latin maxim that literally means “the law does not concern itself with trifles.” Courts turn to this principle when the defendant’s use of copyrighted material is found to be too insignificant to constitute actual infringement.

Recent cases that employ the de minimis doctrine involve music sampling, but it can be applied to cases involving other kinds of copyrighted materials. In a 2003 case, the plaintiff, a medical illustrator, claimed that the defendant, Nextel, used his drawings of dental work in a commercial it ran without his permission. A federal court of appeals found that the defendant’s use of the plaintiff’s copyrighted materials was de minimis and therefore not infringing. To make this determination, the court looked for “observability,”  — how long the infringing use lasted, how prominent it was, and how much was copied. Since the drawings were on the screen for mere seconds, weren’t completely in focus, and were in the far background, the court held that no reasonable observer would find substantial similarity between the original and the copy.

A court would have an even easier time finding Mr. Venter’s use to be de minimis. First, the use probably wouldn’t be considered “observable” because the line was embedded in a genome, which cannot be seen without a very powerful microscope. In fact, the passage wasn’t even “written”; it was encoded. This means that the only people who could even tell that Mr. Joyce’s words were there would be trained scientists who knew what they were looking for. On top of that, the genome mutates as it multiplies, meaning the quoted sentence will eventually be unrecognizable, if it isn’t already.

Second, the amount of work copied is minuscule. The allegedly infringed upon novel is almost 300 pages long, and the passage used consists of only 14 words. A court would likely find that this scanty use of words on a microscopic cell insufficient to be considered infringing.

It seems apropos that the words of one of the most innovative writers of the 20th century would be used in one of the biggest scientific innovations of the 21st century, but more than that, it also seems that courts would not be mad but yes they’d say yes you can Yes.

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