This post compares plagiarism and copyright infringement. It is prompted by a Quora question that I answered several months ago. (See Have your ideas or works ever been plagiarized? What happened?)
Plagiarism is the wrongful appropriate on another’s work and presenting it as one’s own. One typically thinks of plagiarism occurring in academia or journalism. However, as discussed below, it can occur in other professions, too.
Copyright Infringement Defined
The holder of the copyright in a work has certain exclusive rights with respect to that work. These include (as applicable) the rights to reproduce, distribute, publicly perform, publicly display, and make derivative works of the work. Copyright infringement is use of a work, without permission of the copyright holder, that infringes on one of those exclusive rights.
Copyright and trademark owners typically like to exercise their legal rights as broadly as possible. There is however, a well-known limit to those rights called the “first sale doctrine“.
Actually, they are two separate but similar doctrines. One pertains to copyrights, the other to trademarks:
- Copyrights – 17 USC Section 109(a) states, with certain exceptions, that the owner of a lawfully-made copy of a work may sell or dispose of the work. Consent of the copyright owner is not required. So, for example, if you legitimately possess a book or a CD, you may sell it or give it to someone else or throw it into a trash bin.
- Trademarks – The trademark first sale doctrine is a product of case law rather than statute. In Sebastian International, Inc. v. Longs Drug Stores Corporation, the United States Court of Appeals for the Ninth Circuit wrote: “[W]ith certain well-defined exceptions, the right of a producer to control distribution of its trademarked product does not extend beyond the first sale of the product. Resale by the first purchaser of the original article under the producer’s trademark is neither trademark infringement nor unfair competition.” The exceptions include, for example, stolen or counterfeit goods or goods that have avoided the producer’s quality control systems.
Chubby Checker (real name Ernest Evans) – the singer famous for The Twist dance craze in the 1960s – and certain corporations that he controls have filed a lawsuit against Hewlett-Packard Company and Palm, Inc. The suit concerns a no-longer-available app named “The Chubby Checker”.
The app purported to allow women to calculate the size of a man’s penis based on his shoe size. According to webOS Nation, the app was downloaded only 84 times before it was removed in September 2012. Yet press reports state that the plaintiffs are seeking damages of $500 million for trademark infringement and unfair competition!
In Blue Nile v. Ideal Diamond Solutions, the U.S. District Court for the Western District of Washington held that co-defendant Larry Chasin, founder and an officer of defendant IDS, was personally liable for infringement of plaintiff Blue Nile’s copyrighted images, even though Chasin claimed he had no role in putting infringing images on websites and he did not know the images were infringing.
Blue Nile is an online jewelry and diamond retailer. Chasin founded and operated IDS to create websites for brick-and-mortar jewelers to help them compete online. The websites included some of Blue Nile’s copyrighted images.
I recently realized that I have referred to copyright infringement in quite a few posts. However, I neglected to define that term. It is time to correct that oversight.
Copyright Infringement Defined
Generally, infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. I.e., copyright infringement is a violation of the copyright owner’s exclusive rights. (See Copyright Protection in One Easy Lesson.) (more…)
In an interview in today’s San Francisco Chronicle (“Rod Beckstrom, CEO of ICANN, talks about new domain names“), the CEO of the Internet Corporation for Assigned Names and Numbers stated that ICANN will create a global marks database to help protect trademark owners against cybersquatting.
The database will be developed in conjunction with ICANN’s forthcoming implementation new generic top-level domains (gTLDs). ICANN CEO Rod Beckstrom is quoted in the Chron article as saying (emphasis added): (more…)
On occasion I am asked about the extent to which a new work can incorporate elements of a pre-existing work without infringing the pre-existing work’s copyright. To answer such a question, one must understand derivative works.
17 U.S.C. Section 101 says (emphasis added):
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”.
Sometimes people want to know whether a work is so old that it it can be copied without any possibility of infringing anyone’s copyright. This post provides the answer (in the United States).
Before January 1, 1979 – when then-existing copyrights were automatically extended to 95 years from the end of the year in which the copyright was secured – copyrights were in effect for 28 years, with extension, if requested, for a second 28-year period (total of 56 years).
So the earliest a work could have been copyrighted (which, at that time, required publication with a copyright notice) and still received the automatic extension was 56 years before January 1, 1979, i.e., January 1, 1923. The copyright for such a work would expire on December 31, 2018 (after 95 years).
17 USC Section 512(c)(1)(C) provides a “safe harbor” incentive for service providers to remove, or disable access to, infringing works expeditiously. Unfortunately, “expeditiously” is not defined (see “Defining Expeditious: Uncharted Territory of the DMCA Safe Harbor Provision“).
Several months ago, I wrote that the “fair use” defense to copyright infringement often is poorly understood. The U.S. Postal Service illustrates this point. A recent court decision held that a postage stamp infringed the copyrights in certain sculptures and was not fair use thereof.
John Alli took a photo of the Memorial. The Postal Service paid Alli $1,500 for the right to use that photo for a 37-cent stamp commemorating the 50th anniversary of the armistice of the Korean War. Alli told the Postal Service that it would need permission from the owner of the copyright in the sculptures; the Postal Service did not seek such permission. (more…)
A federal court of appeals held in 2008 that an open source developer case sue for copyright infringement despite the breadth of the open source license. The closely-watched case recently settled, meaning that the opinion may well be cited for many years to come.
Plaintiff Robert Jacobsen holds a copyright to certain computer programming code that he makes available for public download for free pursuant to the Artistic License, an open source license.
Defendants Matthew Katzer and Kamind Associates, Inc. develop commercial software products for the model train industry and hobbyists. Defendants copied certain materials from Jacobsen’s website and incorporated them into one of their software packages without following the terms of the Artistic License. Jacobsen sued for copyright infringement and moved for a preliminary injunction.
Those of a certain age will recall watching “Rin Tin Tin” on TV as kids. The venerable canine recently was the subject of a trademark infringement suit (Rin Tin Tin, Inc., et al. v. First Look Studios, Inc., et al.). The defendants prevailed because of the trademark fair use defense.
Rin Tin Tin was a German Shepherd dog found in France during World War I. He became famous through movies and remains well-known to this day.
Plaintiffs breed German Shepherds descended from the original Rin Tin Tin and manage related business endeavors. Rin Tin Tin, Inc. obtained federal trademark registrations for “Rin Tin Tin” pertaining to puppies and dogs of the Rin Tin Tin lineage. (more…)
It appears that at least some gay marriage foes need to learn a thing or two about trademark law.
On January 12, ProtectMarriage.com sent Courage Campaign a cease and desist letter, alleging that Courage Campaign’s Prop 8 Trial Tracker logo infringes ProjectMarriage.com’s trademark and copyright in its logo.
Update: On September 10, 2010, the Court of Appeals for the Ninth Circuit (in Vernor v. Autodesk) reversed the District Count decision discussed below. Supporting software licensors’ reasonable business expectations, the Court held “that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.” [Emphasis added.] Accordingly, Vernor, as a licensee, was not protected by the first sale doctrine when he sold copies of Autodesk’s software.
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In Vernor v. Autodesk, the U.S. District Court for the Western District of Washington told Autodesk that despite the restrictions in its license agreement, Autodesk could not preclude its customer from selling AutoCAD software to a third party.
After months of effort, you have successfully negotiated a nonexclusive license under an important patent. The license agreement allows you to make, use, sell, offer for sale, and import products that are covered by the patent. Much to your horror, your arch-competitor starts making and selling competing products that use the licensed technology, pricing its products substantially below your planned price. When you inquire, the licensor says that the competitor does not have a license. What can you do to stop this “third-party” infringement of the patent?
You examine the license agreement but see nothing about third-party infringement of the licensed technology. Can you stop your competitor from using the technology? Can you force your licensor to stop the competitor? The short answer is “no”.
In the U.S., copyright protection subsists in a work of original authorship as soon as it is fixed in a tangible medium of expression. 17 U.S.C. Section 102 There is no requirement that the work be registered with the Copyright Office or that a copyright notice be affixed. As discussed below, however, there are circumstances when copyright registration and affixing a notice are advisable.
Copyright Registration Required to Bring Suit
17 U.S.C. Section 411(a) says that, generally, a copyright registration is required before the owner can bring suit for copyright infringement. Furthermore, Section 412 says that, generally, awards of statutory damages (Section 504(c)) and attorney’s fees (Section 505) are available only if the copyright has been registered within three months of publication or within one month of learning of infringement, whichever is earlier.