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Archive | Copyright Infringement

Characters and Copyright Protection

Gerald M. Levine, co-author It would be unusual in a work of any genre for every part to be protected by copyright law even though the whole work bears the symbol ©. Only when an infringement is alleged and challenged does it become apparent that the phrase “original works of authorship” (Section 102(a) of the […]

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Derivative Works: Who Owns What?

Courts have recently been busy dealing with the puzzling concepts of derivative works, fair use, and transformation. “Transformation” is the underlying principle of derivative works created either by the author or licensees with the author’s permission; or created without the author’s permission legally under the fair use doctrine. There are two sets of rights granted […]

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Celebrating 305 Years of Statutory Copyright Law

Gerald M. Levine, Co-author Rights in Literary Property The United States Copyright Office and many people on social media, particularly on Twitter, have been celebrating the enactment of the first national copyright act in this country that President Washington signed into law on May 31, 1790. The 1790 Act was largely adopted from an earlier […]

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Delay in Suing for Copyright Infringement

Co-author, Gerald M. Levine Delay in suing for copyright infringement is not fatal to a claim for damages. Plaintiff in the U.S. Supreme Court’s recent 6-3 decision in Petrella v. Metro-Goldwyn-Mayer, Inc., decided on May 19, 2014, waited 18 years to bring suit. The majority held that laches cannot be invoked as a bar to […]

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Wariness in Granting Rights to Aggregators

Originally published as a Guest Blog on Writer Beware® September 7, 2012 Co-author, Gerald M. Levine There is a reason for authors to be wary in granting permission for their blogs to be published by aggregaters. Authors create the content blog aggregators need for their web collections. Each gains in different ways. For the aggregator, […]

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Licensing Work for a Collection

Co-author Gerald M. Levine Including a work in a collection or compilation depends on who owns the copyright and the licensing terms if the work is owned by the author. Compilations of like works or genres may be a goal eagerly sought by authors. Collections may be under a publisher’s control.  Internet compilations may be […]

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Unintended Perils of Collaboration from Ambiguous and Incomplete Agreements

Co-author Gerald M. Levine Literary collaboration is a marriage of convenience. There are perils in ambiguous and incomplete agreements. The parties have to preliminarily agree to their separate and joint responsibilities for the completion and submission of their work. What they think they know and can trust about each other is likely to be more […]

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Falling Into and Out of the Public Domain

Co-author Gerald M. Levine Once in the public domain content (which includes characters) is free; to copy or create derivative works. P.D. James’ Death Comes to Pemberley and a continuing stream of novels featuring Sherlock Holmes are recent examples. Until works fall into the public domain content and characters are not free. They are copyright […]

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When Does “In Book Form” Include Grant of EBook Rights?

Co-author Gerald M. Levine In agreeing to publish a work publishers typically demand author “grant and assign” an exclusive license to “print, publish and sell” the work for the “term of copyright and all continuations, extensions, and renewals thereof” in stipulated languages and territories. In modern publishing agreements the language is clear that the grant […]

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Copyrightability of Generic Elements in a Copyrighted Work

Co-author Gerald M. Levine Unprotected elements in a copyrighted work affects the copyrightability of those elements alone. The copyright does not extend to every sentence in a work or to undeveloped characters. Fair use is not an issue since its application presupposes expressive material that is both copyrightable and copyrighted. (we leave for another day […]

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Copyrightability in “Original Works of Authorship”

To be protected by copyright, to have copyrightability, requires a certain degree of creativity. The Copyright Clause of the U.S. Constitution provides for copyright protection to “original works of authorship.” The Supreme Court has stated that for a work to be protected it has to “possess[] at least some minimal degree of creativity.” Feist Publ’ns, […]

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Titles, Words and Short Phrases (Q&A)

Co-author Gerald M. Levine Titles, Words and Short Phrases are not copyrightable although contextualized they may become so. The answer is found in the Code of Federal Regulations, 37 C.F.R. Sec. 202.1.  Subsection (a) provides that the following “examples of works [are] not subject to copyright and applications for registration of such works cannot be […]

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Contributory Infringement and Vicarious Liability for Copyright Infringement

Co-author Gerald M. Levine Copyright is not limited to literary works but extends to other creative productions. Expressive material in literary works are only one color on the palette of creativity. Literary works are first on the list of 8 in §102 of the Copyright Act. The second on the list is “musical works, including […]

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Unprotected Speech in Blogland

Co-author Gerald M. Levine Not all speech in blogland is protected although as a general rule there is no exposure to liability and nothing illegal in a blogger communicating opinion or making truthful statements  of matters of public interest in her own name or anonymously. Speech is protected under First Amendment issue. Courts carefully safeguard […]

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What Is Copyright Infringement?

In assessing claims for copyright infringement similarity is not enough. Verbatim copying is clearly infringes but the standard needed to prove a case of copyright infringement is “substantial similarity.” In a notable case a couple of years ago by a cookbook author aggrieved by another author allegedly poaching in her niche (sneaking vegetables into children’s […]

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Fair Use is a Statutory Privilege, Not a License

Co-author Gerald M. Levine The U.S. Supreme Court has described fair use as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” The privilege is statutory with a common law background. The question often put is, How much can the taker use […]

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Damages and Penalties for Copyright Infringement

Co-author Gerald M. Levine Copyright infringement has consequences. The Copyright Act protects the integrity of an author’s work by granting the copyright holder certain exclusive rights in both her original and derivative works. It has teeth. This means the author controls who may do what to her work. For example, without a license from the […]

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What is Fair Use?

Gerald M. Levine, Esq, co-author The U.S. Constitution grants to authors and inventors for “limited times … the exclusive right to their respective writing and discoveries.” Fair use is an exception to a copyright holder’s right to exclusive use of an original work and works derived from it. The Fair Use privilege is embodied in […]

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