Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

18 May 2008

link to: 11:10 [GMT-8]

Unreal Estate (8)

Returning to the theme of "what is not work for hire" (and, thanks to the unanticipated delays caused by Life, you might want to review the consolidated "essay" version of the preceding entries)...

A closer look at two of these groupings of excluded works will also prove helpful when later considering "contracting around" the issue. However, rather than organizing this discussion around the groupings themselves, it makes more sense to organize it around the particular problems raised... which, not entirely coincidentally, also organizes the discussion around the various interests/roles that are in play.

The first set of problems comes from conflicts with other, preexisting interests. The employment interest — and the corollary common-law duty of loyalty to an employer — is an obvious example of this. Less obvious (and, therefore, more insidious) is the potential conflict with different types of intellectual property rights, particularly trademark and unfair competition rights related to a media property. An example might make this clearer; it's one I've quoted before in this blawg:

Text copyright 2007 by J.K. Rowling Illustrations by Mary GrandPre copyright 2007 by Warner Bros. HARRY POTTER & all related characters and elements are TM of and copyright WBEI Harry Potter Publishing Rights copyright J.K. Rowling All rights reserved.

Harry Potter and the Deathly Hallows ii (unnum.) (2007) (emphasis added). Similarly, consider

David R. George, III, Crucible: McCoy: Provenance of Shadows ii (unnum.) (2006) (emphasis added).

These two books point out some of the simpler potential conflicts. (Yes, they can — and do — get much more complex, both legally and factually.) In each instance, the copyright notice alleges, or tries (incorrectly) to deny, a division in ownership of expressive and allusive materials. The expressive materials comprise the text in question; as noted above, these are not properly WFH, whether or not the contracts say they are. The allusive materials include, but are not limited to, the various marks. This becomes clearer in the Star Trek example with a few not-so-outlandish hypotheticals.

A fan-written novel that takes substantial dialog one existing episode/film/novel, and copies a substantial part of the plotline, would constitute both copyright and trademark infringement. There is no question that it would not be legally proper to publish such a work without an explicit license from all of the interest-holders. The copyright infringement arises from both the direct copying and the preparation of a derivative work.⁸ The trademark infringement arises from the allusions to marks without license to do so, and in a nonexemplary fashion. It's one thing to have a character exclaim, "Your libido rivals Captain Kirk's!" It's another thing entirely to copy one of Captain Kirk's romantic conquests, even slightly reworded.
A fan-written novel that takes no dialog (except, perhaps, dialog constituting scenes á faire or that represents one of the restricted ways of expressing a fact — even a "fact" internal to a work of fiction) or plotline from any single existing work, but instead draws from the entire environment to tell a new story. Under some copyright theories, this would constitute a copyright infringement (e.g., the Tarzan/Sam Spade line of cases); under others, it might not, particularly if arguably parodic (e.g., The Wind Done Gone/Gone With the Wind controversy). That, however, does not get the author off the hook, as the allusive uses of marks — particularly if done persistently — constitutes some form of trademark infringement. This points out a problem in using traditional trademark analysis: If an alluding work is "high quality," it is both harder and easier to win the claim.
A fan-written novel that parodies the existing environment, particularly through use of anachronism. One good example is this "winning" entry from the Bulwer-Lytton contest a few years back (unfortunately, the site is in hibernation, so I can't give you a direct link or the correct attribution at the moment):

Kirk's mind raced as he quickly assessed his situation: the shields were down, the warp drive and impulse engines were dead, life support was failing fast, and the Enterprise was plummeting out of control toward the surface of Epsilon VI and, as Scotty and Spock searched frantically through the manuals trying to find a way to save them all, Kirk vowed, as he stared at the solid blue image filling the main view screen, that never again would he allow a Microsoft operating system to control his ship.

(Note, though, that this parody probably fails the legal definition of "parody," because arguably its "target" is not Star Trek, but Microsoft. This merely points out that lawyers shouldn't write about literature without understanding literary theory first...) In this instance, the trademark use probably is examplary, so it would not constitute trademark infringement. Whether it might be some other form of unfair competition, though, is not clear.

For the moment, I am neglecting any potential fair use defense. That is another subject entirely, although the very concept of fair use has some interesting implications for the very concept of the WFH. Unfortunately, those implications belong — for the present — in law journal articles that are harder to take out of context (although not completely impossible). Just assume that anything in these examples is beyond the bound of fair use, both under the traditional four factors and under the fifth, nonstatutory, factor (administrative convenience).

Labels: arts, copyright, culture, intellectual property, publishing

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Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (UC-Irvine)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Michael Madison (Pitt Law)
- Professor Rebecca Tushnet (Georgetown Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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