Copyright, Trademark, Libel and you! Christine Beck.

Copyright, Trademark, Libel—and you!

Christine Beck

Left Brain/Right Brain

Disclaimer

• Any relationship between Christine Beck and a real attorney is purely coincidental and constitutes historical fiction.

• This presentation is not legal advice but perhaps will give you some practical strategies to avoid needing legal advice.

Intellectual Property

• Your creative writing is “intellectual property.” Your legal rights and responsibilities are governed by:– Contracts (with journals, publishers)– Copyright Law– Trademark Law– The Law of Defamation (libel, slander, invasion of

privacy, etc.)

I. What is Copyright?

• The exclusive legal right, given to the originator to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do it. Copyright is a legal concept, embodied in a federal statute, giving the creator of an original work exclusive rights to it with the intention of enabling the creator of intellectual wealth to get compensated for their work.

How Long Does it Last?

• For works created after January 1, 1978, copyrights last for 70 years after the death of the author. These rights can pass to heirs, and don’t expire at the writer’s death.

• Note: Copyright violation is NOT the same as plagiarism. We will get to that later.

Copyright does not apply to works in the “Public Domain”

• The works of others in the public domain generally includes material published before 1923 and unpublished poems whose authors died more than seventy years ago.

• Shakespeare has no copyright!

How do I copyright my work?

• Your poem is copyrighted automatically as soon as you write it, without any additional effort on your part. Publication is not a requirement in creating its copyright status nor is putting a copyright notice on your work necessary. If you’re concerned about formally establishing its content and its preparation date, mail or E-mail it to yourself.

•

Should I file with the Copyright Office?

• You will have to register if you wish to bring a lawsuit for infringement of a U.S. work. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie [no need for any other proof] evidence in a court of law.

If my poem is published, have I given away my copyright to the journal?

• This depends on the terms of your contract with the journal. Frequently, copyright remains with the journal for print and online printing and reprinting, but otherwise reverts to the author (for example, to include in a book). Read your contract or ask.

•

When can I use other authors’ copyrighted work?

Under federal copyright law, “fair use” is the right to use copyrighted material without permission or payment under limited circumstances. Fair Use has been part of copyright law for over 170 years. There are “guidelines” in determining “fair use,” but the answer depends on a case-by-case analysis.

When relying on the fair use exception, ask:

• 1. Did your unlicensed use “transform” the

material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

• 2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Example

• I said it sounded harmless, the pomp and fury• of the passionate. He said it was a curse• being born Italian and Catholic and when he• looked from that window what he saw was the

moment• rudely crushed. But all I could see was a gorgeous• three-layer cake gliding like a battered ship• down the sidewalk, the smoking candles broken, sunk• deep in the icing, a few still burning.•

Further examples of fair use Poems that constitute parody, satire and commentary.• Under fair use, a poet may adapt a poem or a portion

of a poem in order to (1) offer a critique of that poem, its author, or its genre;

• (2) present a genuine homage [tribute] to a poet or genre; or

• (3) hold up to ridicule a social, political, or cultural trend or phenomenon.

Mash-ups in Poetry?

• Remix, Pistiche, Cento, and Allusion

• Under fair use, a poet may make use of quotations from existing poetry, literary prose, and non-literary material, if these quotations are re-presented in poetic forms that add value through significant imaginative or intellectual transformation, whether direct or (as in the case of poetry-generating software) indirect.

• How Does Copyright Infringement Relate to Plagiarism?

• Plagiarism is taking the work of another (whether copyrighted or not) and passing it off as one’s own. It is unethical and will disqualify a poet from publishing the work as the poet’s own. Although plagiarism may be theft or fraud, it is not generally prosecuted as a crime.

II. Trademark

• A trademark is any word, name, or symbol

that identifies and distinguishes the source of the goods of one party from those of others. [Similarly, a service mark is any word, name, symbol or device that identifies and distinguishes the services of one party from those of others.]

• WHAT IS TRADEMARK LAW • Trademark law is embodied in a federal statute that

protects the use of words, symbols, designs or logos that identify and distinguish a source of goods.

• The scope of trademark protection is generally to protect the mark for the sale of the same or related goods, i.e., a computer company could name their new computer "Nike", and it (probably) wouldn't be a trademark infringement upon the athletic shoe company.

Trademark Infringement

• The three things to consider in connection with the use of trademarked brand names in poetry or fiction are trademark infringement, trademark dilution, and trademark tarnishment/defamation.

• • 1. A classic case of "trademark infringement" is the

unauthorized use of a name in a way that creates a likelihood of confusion in a reader’s mind as to the origin of the goods or services. This rarely happens in creative writing as the author intends the reader to recognize the product for what it is.

• Trademark dilution" is a somewhat different legal theory that gives owners of brand names a legal right to prohibit others from using those names in a manner that would make them less "distinctive," less able to identify and distinguish the owner’s goods or services from similar products. For example, using Kleenex without a capital K would tend to make the word “generic” and risk losing trademark status.

• Words that have become generic and lost their trademark status: aspirin, thermos, linoleum, laundromat, heroin, zipper

Trademark Violations

Trademark Violations

• Defamation" and "tarnishment" are the areas where there could be greater cause for concern. If, for example, you falsely depict a brand name product as being dangerous or defective, a manufacturer will be heard to complain. If you write that a swine flu epidemic was started by a Kleenex, you are defaming the product.

Tips to avoid Trademark Violations• Always capitalize the trademarked project and

spell it correctly. • If you plan to write about a product in a way that

would disparage it, give it a different name. • Where possible, use a generic term (ie

“coffeehouse”) instead of a trademarked one (ie “Starbucks.”) This is often not desirable because writers often choose a name for its sound or for other features associated with the specific name.

III. Libel

• WHAT IS Libel? • Libel is a written form of defamation—a

term for any untrue statement which is made public that hurts someone's reputation. Defamation is not a crime. Rather, it is a tort (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming for money damages that result from damage to reputation.

Defamation requires:

• A statement of Fact• “Of and concerning” a specific live person who

is identified or easily identifiable• That is Untrue, and• Injures the person’s reputation• Note: dead people can’t be defamed

Tips to Avoid a Defamation Claim

• Obscure the identity of the person you are writing about. Note: the issue is whether the person can be “identified.” Just changing the name may not be enough if other factors clearly point to that person.

• Do not say anything about the person that is not verifiably true.

• Read your contract with your publisher (does it say the publisher will defend you against libel claims? Are you required to defend and pay?)

• Don’t “settle scores” through poetry or fiction.

Is this poem libel?

What about this one?

Summary

• Your own work is automatically copyrighted• If you use a line from someone else’s work

(copyrighted or not), put it in italics or otherwise indicate you didn’t write it.

• If you use a brand name, capitalize it and don’t disparage it.

• Change people’s names and don’t make villains recognizable.

• Thanks to:• Lawrence H. Lissitzyn for research

• For a copy of this presentation, go to• www.ChristineBeck.net