Law at DragonCon 2017

DragonCon 2017 officially kicks off later this morning, though the party started as early as Wednesday for a great many. Since it’s one of my hometown cons, I’ll be attending as usual, and, as usual, I didn’t submit in time for pro or guest status. Those deadlines came and went while I was still buried in dual roles at the day job, something that is thankfully now almost completely in the past (the dual roles, not the day job).

For those of you attending DragonCon and also interested in the legal side of the creative world – and you’re here on WRITER-IN-LAW so I assume you are either interested or quite lost – I’ve compiled a wee list of panels and presentations that you might want to star in the DragonCon App.

First and foremost, you can just look up Courtney Lytle in the list of speakers to find all of her sessions. In addition to being a practicing attorney whose expertise includes the area of intellectual property law, Courtney is also an adjunct professor at Emory University School of Law. I’ve seen her speak before, and she is flat out excellent. She has the rare ability to explain the law in a way that is easy for a layperson to understand while at the same time insuring that she is not sacrificing legal accuracy or precision. She has two sessions in the Art Show Programming (Friday at 1:00PM and Saturday at 5:30PM) and two sessions on in the Electronic Frontiers Forum track (Sunday at 11:30AM and Monday at 10:00AM).

Second, you might want to browse straight through the track schedule for the Electronic Frontiers Forum. On Friday starting at 4:00PM, you’ll find a panel on Freedom of the Press and Censorship, followed by a discussion of Net Neutrality. A few hours after that, the track has a panel on legal and security issues surrounding autonomous cars. Saturday morning starts with a discussion of California privacy laws, a couple of hours later, the track continues with a FOIA workshop, and then at 5:00PM there’s a panel on social media monitoring by law enforcement. On Sunday and Monday, in addition to Courtney’s two presentations (Copyright 101 and Copyright & Cosplay), the track features panels on the Techdirt lawsuit, rules for police encounters, and leaked CIA surveillance techniques.

The final session I want to bring to your attention relates to that second* certainty in life: taxes. On Monday** at 11:30AM, Christy Nicholas, CPA, is giving a presentation titled “Taxes for Artists: How to Keep All That Money You Aren’t Making at Art!” Having seen her presentation before, I can say it is useful for writers as well as artists. She packs a lot into her presentation, but she usually has handouts! So you can keep up. It’s so useful that even though I’ve seen it before, I still try to catch this one each year.

So there you have it, the law-nerd breakdown of DragonCon. If I missed anything, please feel free to add it in the comments.

*Why is it the second? Why is it “Nothing is certain, but death and taxes” instead of “Nothing is certain, but taxes and death.” Shouldn’t taxes come before death? I mean, someone might end up paying taxes after you die, but it won’t be you…unless you’re counting the coin you’re supposed to give Charon.

**Yes, they saved the tax talk for Labor Day. Thanks for rubbing it in.

Advertisements

1 Comment

Filed under Uncategorized

Waking up from Hibernation

sleeping-bear-cubThis blog has been in hibernation for almost three years, thanks to an addition of job responsibilities. Now that I’ve acclimatized to performing the duties of two jobs without cloning myself, the blog hiatus is close to an end. Copyright, contract, and more soon to come!

Leave a comment

Filed under Uncategorized

Copyright Class 10 Infringement Part III

In the previous two classes (Infringement Part I and II), we’ve been looking at the heart of the typical infringement analysis. Today, we’ll be looking at one special limitation to infringement of the reproduction right and at infringement of the other rights besides the exclusive right of reproduction.

Infringement of the reproduction right of copyright in sound recordings

In order to fully understand, the limitation of the reproduction right in the copyright of sound recordings, we need to understand how copyright applies to music. It’s easiest just to think  of music as having two separate copyrights. There is one copyright in the musical composition, typically subsisting in the writer of the work, and another copyright in each particular sound recording, typically subsisting in the producer. The musical composition is what we think of as the musical work, the song itself.  The sound recording is a particular recording.

So any particular song you hear on the radio is subject to two copyrights.

Copyrights in sound recordings are very limited. They are only infringed by ‘mechanical’ reproduction. Basically, you have to use a machine to copy it. Put another way, if you hired a group of musicians to imitate, exactly, a sound recording, it would not be an infringement of the copyright in the sound recording (although it would obviously infringe the copyright in the musical composition).

The most interesting recent issue relating to sound recordings is whether digital sampling infringes the original work. See Bridgeport Music v. Dimension Films.

Other rights provided by copyright

Thus far in our examination of infringement, we’ve been talking about the exclusive right to reproduce the copyrighted work, in other words, the right to prevent others from copying the work. That is the most commonly asserted right, and the right most people associate with copyright. Hey, it’s right in the name.

But it is not the only right an owner of copyright gets – Section 106 of the Copyright Act provides six different rights:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Let’s look at each briefly.

Exclusive right to prepare derivative works

Section 101 defines “derivative work.”

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

The most important examples for fiction writers would be the conversion of a book into a movie, the translation of a book, the preparation of an audiobook version of the book, and in some cases the writing of a sequel (…and the preparation of an abridgment if we harken back to the golden days of Reader’s Digest).

Where you are most likely to see something that looks like this right is in the grant of rights clause in a book contract. However, that grant of rights actually includes both this right to prepare derivative works and the broader right to make reproductions of the work. Those provisions in the granting clause transfer the exclusive right, for example, to make a movie version of the book. In order to do so, that clause has to mean both the reproduction right and the derivative right.

The reason for this is the same reason why you rarely see the derivative right asserted by itself. The derivative right is most often asserted as an additional claim added on to a claim of infringement of the reproduction right. Thinking about the scope of the reproduction right is the key to understanding why. If you think back to our examination of the infringement analysis, it becomes immediately obvious that one can infringe the reproduction right without making an exact verbatim copy. A non-literal copy is still a violation of the reproduction right. One extension of that is that changing the medium of the work can still be a copy. Thus a photograph can be a copy of a sculpture and a movie can be a copy of a book. That means that most derivative works are also copies.

Factual circumstances that create potential infringements of the derivative right without infringing the reproduction rights are rare. One example is when an individual alters an authorized copy enough to create a derivative work. So if you bought a coffee table book, cut out the images, and then mounted them on tiles – you might have altered them enough to meet the statutory definition of a derivative work. See Mirage Editions v. Albuquerque A.R.T. Co. and Lee v. A.R.T. Co. A second example is when hardware or software is used to alter an existing program as it runs. See Lewis Galoob Toys v. Nintendo of America (anybody remember the Game Genie?) and Micro Star v. Formgen (involving Duke Nukem 3D levels)

Exclusive right to distribute the work

This right exists to close a “loophole” in the reproduction right. If one individual makes thousands of copies of DVD and then sells them to a second individual who then offers them for sale to the public, the second individual technically has not made any copies. The distribution right allows the copyright holder to go after the second individual directly. That individual may be the only one the owner can easily find.

The real story of this right is really its most important limitation.

Think about the scope of this right – distribution “by sale or other transfer of ownership, or by rental, lease, or lending”.

Have you ever given a book to someone as a gift?Have you ever leant someone a book? The first is a transfer of ownership and the second is a lending – in other words if we look no further than section 106, each of those activities appears to be an infringement of copyright!

But of course, it’s not. This is where the First Sale Doctrine, codified in Section 109, does its work:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

This exhaustion of the distribution right only occurs once the copyright holder has first parted with ownership of that particular copy. If ownership is not transferred by the owner, if instead the particular copy is only licensed to the recipient, the First Sale doctrine does not kick in. In the literary world, most publishers and retailers purport to license eBooks to readers rather than sell them. If that is the case, then the purchaser (?) cannot resale or even gift it. We’ve looked at this issue a few other places.

Exclusive right to display the work publicly

Section 101 provides:

To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

Further:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Like the distribution right, the public display right has a broad limitation. Section 109(c) provides that the owner of a particular copy can display that copy without infringing this right. So a museum that owns the a painting (the physical object) can display it without violating the display right. Where you sometimes see this right litigated is in works that are shown in the background of movies and TV shows.

Exclusive right to perform the work publicly

Section 101 defines “perform”:

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

Like the display right, this right is limited to certain types of works.

Exclusive right to perform the copyrighted work publicly by means of a digital audio transmission

This right is specifically limited copyright in sound recordings. Section 101 provides a robust definition: “A “digital transmission” is a transmission in whole or in part in a digital or other non-analog format.” This was initially enacted because of a fear of a ‘celestial jukebox’ streaming music to devices, but it also applies to many internet music streaming services.

1 Comment

Filed under Uncategorized

Option and Right of Refusal Clauses

I have another guest post up at The Fictorians today. As a part of their month long look at the business side of writing, I discuss book contract clauses that potentially give publishers rights in your future works. Go take a look at what you need to watch out for before signing that contract.

Leave a comment

Filed under Uncategorized

Magic and Copyright

A federal court in Nevada published a ruling on Thursday in favor of the magician Teller over a YouTube video showing one of his signature magic tricks, Shadows.

Shadows essentially consists of a spotlight trained on a bud vase containing a rose. The light falls in a such a manner that the shadow of the real rose is projected onto a white screen positioned some distance behind it. Teller then enters the otherwise still scene with a large knife and proceeds to use the knife to dramatically sever the leaves and petals of the rose’s shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the vase fall to the ground, breaking from the stem at exactly the point where Teller cut the shadow projected on the screen behind it.

Dogge - related to Doge? ...probably not.

Dogge – related to Doge?
…probably not.

Penn and Teller both said that no one would figure out how it was accomplished. A Dutch magician Dogge posted a video to YouTube showing himself performing Shadows. He also offered to teach the trick to anyone for around $3,000.

Teller, famous for rarely speaking, was not laughing. He sued for copyright infringement.

But first he’d have to find the rival magician.

Teller went to lengths to punish Dogge for copyright infringement. Literally. Teller had to hire a private investigator to locate Dogge to serve papers to him, and for a while, Dogge evaded service in Belgium, Spain and other European countries. So Teller did a neat new trick. He emailed the court papers to Dogge and managed to convince the judge that his imitator had opened them. It was enough for the judge to allow the lawsuit to proceed. [Hollywood Reporter]

Once he was able to accomplish that trick, the court could give us a ruling on the merits – or at least as much as we can get at the current procedural hurdle.

The judge said that copyright did not protect how the magic trick worked. That would be a utility patent or trade secret if anything. However, the judge did say that pantomimes can be protected by copyright – like any fixed dramatic performance.

Dogge defended himself, among other ways, by claiming that his performance was not substantially similar to Teller’s trick in how the magic part of it worked. In other words, he said it was dissimilar, but only in ways no one watching the trick could see! The judge was less than generous in dealing with this argument:

By arguing that the secret to his illusion is different than Teller’s, Dogge implicitly argues about aspects of the performance that are not perceivable by the audience,” he writes. “In discerning substantial similarity, the court compares only the observable elements of the works in question. Therefore, whether Dogge uses Teller’s method, a technique known only by various holy men of the Himalayas, or even real magic is irrelevant, as the performances appear identical to an ordinary observer.

Teller is not the first magician to sue over the revelation of a trick, but it is not that common. The magic industry, like the comedy industry, relies on industry norms and punishments more frequently than courts or the law. Like comedians who steal material, magicians who reveal tricks are often blackballed from most paying establishments.

 

1 Comment

Filed under Uncategorized

Copyright Class 9 – Infringement, Part II

This week we look at the second half of the infringement analysis. Well, it’s half if you consider it as one of two elements. However, if we look at how much work or effort you have to put into this, it’s much more than half.

As a brief review, last week’s class set forth the two elements a plaintiff had to prove (beyond owning a valid copyright): 1) copying and 2) improper appropriation. Copying basically means that the defendant actually copied form the plaintiff’s protected work in stead of, say, coming up with the similar work completely independently or copying from a third work from which the plaintiff also copied.

Improper appropriation asks whether what the defendant copied was substantially similar to that part of the plaintiff’s work protected by copyright. Is the allegedly infringing work substantially similar to the copyright protected elements of the plaintiff’s work?

Improper Appropriation – It’s Confusing

Exactly how a court applies or even states this test can vary a great deal depending on what court it is, what medium the works are in, and what the parties argue before the court. It can get pretty murky if you sit down and try to figure out exactly what the test is. Additionally, the actual application of the test is far from a bright line. So when a lawyer equivocates on whether you “can do something” or not without running a foul of copyright, this is one of the main reasons. (Of course, the lack of any bright line rules in Fair Use is the other main reason.)

Peter Pan Fabric's print

Peter Pan Fabric’s print

The famous Judge Learned Hand explained why the test is so hard to nail down in Peter Pan Fabrics v. Martin Weiner Corp, a case involving similar designs printed on fabric:

The test for infringement of a copyright is of necessity vague. In the case of verbal “works” it is well settled that although the “proprietor‘s monopoly extends beyond an exact reproduction of the words, there can be no copyright in the “ideas” disclosed but only in their “expression.” Obviously, no principle can be stated as to when an imitator has gone beyond copying the “idea,” and has borrowed its “expression.” Decisions must therefore inevitably be ad hoc. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible. No one disputes that the copyright extends beyond a photographic reproduction of the design, but one cannot say how far an imitator must depart from an undeviating reproduction to escape infringement.

Martin Weiner Corp's print

Martin Weiner Corp’s print

Essentially, copyright infringement would be a lot clearer if we said only exact reproductions were infringing. That would make it much easier to predict the outcomes of cases. But we wouldn’t think it was particularly fair if someone could just make a few minor changes and get away with copying the rest? And that wouldn’t really effectuate the goal of providing economic incentives to creators. So, copyright says that a n infringing work does not have to be an exact copy – it only has to be substantially similar. That’s one source of murkiness in the test.

On the other side, we also say that copyright cannot protect ideas; instead, it only protects expressions. So someone can copy ideas without being infringing. But the line between what is an idea and what is expression is itself nearly impossible to nail down.

These two facets, Judge Hand was saying, create the vagueness and uncertainty that surround the infringement test. Take for example two cases that take two completely different approaches: Roth Greeting Cards v. United Card and Satava v. Lowry.

Roth involved two greeting card makers. Roth claimed that United had copied a number of its cards. The short statements on the front and inside of the cards were virtually the same, as was their general placement. The art work was different (generally a cartoonish character under the words on the front of the card). In addressing the improper appropriation element, the court did not try to make a detailed determination of what was protected as expression and what was idea. Note that the words themselves were just phrases or sentences that were too short by themselves to receive copyright protection. It was the selection and arrangement that yielded the originality sufficient for copyright protection.

It appears to us that in total concept and feel the cards of United are the same as the copyrighted cards of Roth. With the possible exception of one United card (exhibit 6), the characters depicted in the art work, the mood they portrayed, the combination of art work conveying a particular mood with a particular message, and the arrangement of the words on the greeting card are substantially the same as in Roth‘s cards. In several instances the lettering is also very similar.

It is true, as the trial court found, that each of United‘s cards employed art work somewhat different from that used in the corresponding Roth cards. However, “The test of infringement is whether the work is recognizable by an ordinary observer as having been taken from the copyrighted source.”

The remarkable similarity between the Roth and United cards in issue (with the possible exception of exhibits 5 and 6) is apparent to even a casual observer. For example, one Roth card (exhibit 9) has, on its front, a colored drawing of a cute moppet suppressing a smile and, on the in- side, the words “i wuv you.” With the exception of minor variations in color and style, defendant‘s card (exhibit 10) is identical. Likewise, Roth‘s card entitled “I miss you already,” depicts a forlorn boy sitting on a curb weeping, with an inside message reading “… and You Haven‘t even Left …” (exhibit 7), is closely paralleled by United‘s card with the same caption, showing a forlorn and weeping man, and with the identical inside message (exhibit 8).

In contrast to the overall impression approach taken by the court in Roth, the court in Satava v. Lowry took a very detailed-oriented approach to the evaluation under the improper appropriation element.

Satava involved two sculptors who made glass sculptures that resemble jellyfish – brightly colored glass inside a cylinder of clear glass. Here the court took great pains to determine what was merely an idea first and then excluded any similarities of ideas from the substantial similarity analysis.

Satava's glass sculpture

Satava’s glass sculpture

The originality requirement mandates that objective “facts” and ideas are not copyrightable. Similarly, expressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law.

It follows from these principles that no copyright protection may be afforded to the idea of producing a glass-in-glass jellyfish sculpture or to elements of expression that naturally follow from the idea of such a sculpture. Satava may not prevent others from copying aspects of his sculptures resulting from either jellyfish physiology or from their depiction in the glass-in-glass medium.

Satava may not prevent others from depicting jellyfish with tendril-like tentacles or rounded bells, because many jellyfish possess those body parts. He may not prevent others from depicting jellyfish in bright colors, because many jellyfish are brightly colored. He may not prevent others from depicting jellyfish swimming vertically, because jellyfish swim vertically in nature and often are depicted swimming vertically.

Satava may not prevent others from depicting jellyfish within a clear outer layer of glass, because clear glass is the most appropriate setting for an aquatic animal. He may not prevent others from depicting jellyfish “almost filling the entire volume” of the outer glass shroud, because such proportion is standard in glass-in-glass sculpture. And he may not pre- vent others from tapering the shape of their shrouds, because that shape is standard in glass-in-glass sculpture.

Lowry's glass sculpture

Lowry’s glass sculpture

Satava‘s glass-in-glass jellyfish sculptures, though beautiful, combine several unprotectable ideas and standard elements. These elements are part of the public domain. They are the common property of all, and Satava may not use copyright law to seize them for his exclusive use.

It is true, of course, that a combination of unprotectable elements may qualify for copyright protection. But it is not true that any combination of unprotectable elements automatically qualifies for copyright protection. Our case law suggests, and we hold today, that a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.

The combination of unprotectable elements in Satava‘s sculpture falls short of this standard. The selection of the clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereotyped jellyfish form, considered together, lacks the quantum of originality needed to merit copyright protection. These elements are so common- place in glass-in-glass sculpture and so typical of jellyfish physiology that to recognize copyright protection in their combination effectively would give Satava a monopoly on lifelike glass-in-glass sculptures of single jellyfish with vertical tentacles. Because the quantum of originality Satava added in combining these standard and stereotyped elements must be considered “trivial” under our case law, Satava cannot prevent other artists from combining them.

Note that the court did not say that Satava had no copyright in his sculptures; rather, the court said he did not have copyright protection in that which Lowry copied.

We do not mean to suggest that Satava has added nothing copyrightable to his jellyfish sculptures. He has made some copyrightable contributions: the distinctive curls of particular tendrils; the arrangement of certain hues; the unique shape of jellyfishes‘ bells. To the extent that these and other artistic choices were not governed by jellyfish physiology or the glass-in-glass medium, they are original elements that Satava theoretically may protect through copyright law. Satava‘s copyright on these original elements (or their combination) is “thin,” however, comprising no more than his original contribution to ideas already in the public domain. Stated another way, Satava may prevent others from copying the original features he contributed, but he may not prevent others from copying elements of expression that nature displays for all observers, or that the glass-in-glass medium suggests to all sculptors. Satava possesses a thin copyright that protects against only virtually identical copying.

What is of note is that both cases would have come out differently had they used the approach taken by the other. If the Roth court had taken a detail-oriented approach and eliminated all those aspects of the selection and arrangement that are common to most all greeting cards, what might be called functionality-driven ideas, then there would have been nothing left under copyright protection that was copied by United Cards.  Conversely, if the Satava court had merely asked whether the two sculptors works shared the same total concept and feel, the court would have concluded that they did.

Improper Appropriation – The Analysis

It basically boils down to two determinations:

  • What is protected expression and not unprotected idea?
  • Is there substantially similarity between the allegedly infringing work and the expression of the copyrighted work?

Idea/Expression Dichotomy

We talked about the idea/expression dichotomy way back in class 3 when we talked about the Nichols case. We can look at it from two directions. If we take recognized expression, let’s say a novel. Then we start to create greater and greater levels of abstractions from that expression. At some point of abstraction, it will become idea not expression. Taken from the other direction, we can take an idea and start adding more and more details. At some point it will become expression. Of course, where that line is, no one knows.

The quoted portions of the Satava case above are an example of a court looking at the idea/expression dichotomy.

Substantial Similarity

You’ll note that we ran into the term “substantial similarity” last week when we were talking about the copying element. One of the most common ways to prove copying was to do so by inference: showing the defendant had access to the copyright protected work and showing that the allegedly infringing work was substantially similar. From those circumstances, a judge or jury could conclude that copying had occurred.

We see the same words in the improper appropriation analysis, but the test is different. This is one of the frequent sources of confusion. In the copying analysis, we look to dissect the two works as experts would and then ask how similar they are, and we are not concerned about which parts of the copyright protected work are actually protected by copyright.

In contrast, under the improper appropriation analysis, we ask whether certain parts of the two works would be considered substantially similar to an ordinary observer. In Arnstein v. Porter, the court said that the ordinary observer was a lay person. Basically, your average person off the street. However, that was refined, or perhaps clarified, in Dawson v. Hinshaw.

Dawson v. Hinson involved to composers of spirituals, with Dawson accusing Hinshaw Music, among others, of having copied his arrangement of “Ezekial Saw De Wheel.” (The music is linked here.)

As a part of the improper appropriation test, the court said that the ordinary observer should be one who was the intended audience of the work. The court explained how this was what Arnstein case actually stood for, despite its use of the “lay person” language, and how this best served the incentive theory underlying copyright.

Arnstein v. Porter provides the source of modern theory regarding the ordinary observer test. Arnstein involved the alleged infringement of a popular musical composition. Writing for the panel, Judge Jerome Frank first explained that “the plaintiff‘s legally protected interest is not, as such, his reputation as a musician but his interest in the potential financial returns from his compositions which derive from the lay public‘s approbation.” This initial observation gave force to the recognized purpose of the copyright laws of providing creators with a financial incentive to create for the ultimate benefit of the public.

Consistent with its economic incentive view of copyright law, the Arnstein court concluded that “the question, therefore, is whether defendant took from plaintiff‘s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to plaintiff.” Thus, under Arnstein, a court should look to the reaction of “lay listeners,” because they comprise the audience of the plaintiff‘s work. The lay listener‘s reaction is relevant because it gauges the effect of the defendant‘s work on the plaintiff‘s market.

Although Arnstein established a sound foundation for the appeal to audience reaction, its reference to “lay listeners” may have fostered the development of a rule that has come to be stated too broadly. Under the facts before it, with a popular composition at issue, the Arnstein court appropriately perceived “lay listeners” and the works‘ “audience” to be the same. However, under Arnstein‘s sound logic, the lay listeners are relevant only because they comprise the relevant audience. Although Arnstein does not address the question directly, we read the case‘s logic to require that where the intended audience is significantly more specialized than the pool of lay listeners, the reaction of the intended audience would be the relevant inquiry. In light of the copyright law‘s purpose of protecting a creator‘s market, we think it sensible to embrace Arnstein‘s command that the ultimate comparison of the works at issue be oriented towards the works‘ intended audience.

To further confuse the matter, how you determine whether it is substantially similar to the intended audience often comes down to the testimony of experts. So you have experts testifying about the technical similarities of the entire work in the first element (copying) while you have experts testifying about what a certain group of people would think about the similarity of certain elements of the works. No room for confusion there at all…

…and that does not even start to take into account when you enter areas like computer software. Read on if you dare – Computer Associates v. Altai.

3 Comments

Filed under Uncategorized

Nancy DiMauro on Reversion Clauses

Friend, writer, and lawyer Nancy DiMauro is over at The Fictorians today telling you what you need to know about reversion clauses.

Okay, let’s look at it this way. I was recently shopping a story to some E-publishers. Before submitting, I checked out the contract terms as stated on the webpage. Buried in the mumbo-jumbo about submission guidelines and other facts was this gem: “Length of grant of publishing rights: Life of copyright.” What the heck?

A copyright lasts your life and another 70 years (in the US and UK. There some other countries which the copyright only lasts 50 years after your death, but it’s still a darned long time.). If you signed a contract with this “reversion” clause your publisher OWNS YOUR STORY for your life, the life of your kids, and a good chunk of your grandchildren’s life. The publisher can do whatever it wants with your story until it has no commercial value (i.e. is in the public domain) and, most likely, not pay you a penny more.

Now do you see the problem?

You might shake your head and say that “well, that was an e-publisher, the traditional houses aren’t like that.” Oh yes, they can be. If you let them. Publishers of all kinds are trying to grab as many of your right as possible, keep them for as long as possible and return as few of them to you as possible. This doesn’t make the publishers “evil.” It just means they are better at looking out for their businesses interests than most writers are. After all, they make money off the stories other people write. Of course, the publisher wants to keep those words for as long as possible.

“But wait!” you say. “Isn’t there something about my getting the rights back if the work goes out of print?”

Yep. That’s the reversion clause. And Nancy goes on to tell you what you need to make sure is in there to avoid getting burned.

1 Comment

Filed under Uncategorized