|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.|
link to: 11:10 [GMT-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
Copyright © 2006 CBS Studios Inc. All Rights Reserved. STAR TREK and related marks are trademarks of CBS Studios Inc.
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.
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.
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Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.
Now live at the new site. I have arranged some of
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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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 # >.