Category Archives: Copyright

Common Questions – Can I Copyright My Formula?

Probably not. No matter how new a formula (a.k.a. recipe) may be, if it simply comprises a combination of ingredients mixed together to form a new and unique dish, it is not likely to be copyrightable. And, once published, even if the recipe contains additional descriptions or commentary or similar copyrightable expressive content, nothing would actually prevent someone from making the dish.

Consider an example of the brand-new restaurant, whose chefs for have worked together to create a very unique and unusual menu for their customers. After several months, one chef leaves to start a new restaurant – and publishes a cookbook that contains many of the recipes he co-developed with his former co-owner.

Is this infringement?

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Copyrighting Software? Don’t Rely on Screenshots Alone!

In a recent decision, the Second Circuit Court of Appeals recently held that a copyright application solely directed to screen shots generated from a software program was insufficient to establish copyright rights in the software as a whole, for purpose of giving the plaintiff a right to sue for infringement of the software. In A Star Group, Inc. v. Manitoba Hydro, the Second Circuit considered whether a plaintiff had jurisdictional standing to file suit for copyright infringement relating to its software – specifically because the plaintiff applied for copyright protection only over screen shots showing various displays that appear when its software was used and not in the software as a whole. (A Star Group, Inc. v. Manitoba Hydro, No. 14-2738-cv (2d Cir. July 27, 2015) affirming No. 13 Civ. 4501, 2014 WL 2933155 (S.D.N.Y. June 30, 2104) – BNA’s cite: 2015 BL 238362.)

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New Copyright Proposal Addresses Performance Rights

According to the BNA, Rep. Melvin L. Watt (D-NC) introduced the Free Market Royalty Act (H.R. 3219) on September 30, 2013.  See “Rep. Melvin Watt Introduces Bill to Create Performance Right for Recording Artists,” BNA’s Patent, Trademark & Copyright Journal – Daily Update, No. 191 (Oct. 2, 2013).  Rep. Watt stated that this bill provides “a ‘performance right’ that will obligate AM/FM radio stations to compensate performers for the use of their music just as cable, satellite and internet radio are obligated to do.”  Press Release, “Congressman Watt’s Statement on the Introduction of H.R. 3219, the Free Market Royalty Act,” October 1, 2013.  (Note that the index of Rep. Watt’s press releases indicates that this was issued on October 1.  The release itself shows no date.  Congress.gov indicates it was introduced on September 30, and has already been referred to the House Committee on the Judiciary.)

Rep. Watt explains that under current law, when an AM or FM station plays a song, the composer and the publisher both receive royalties and the performer does not.  Press Release.  This bill proposes to level that playing field, and put compensation for music broadcasting on par with international counterparts.  Id.
As of this writing, there are no co-sponsors to the bill.  The text of the bill has not been received by the Library of Congress to post on its website, which states instead:

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Common Questions: Can I Copyright My ‘Knight in Shining Armor’ Story?

The short answer is – perhaps, at least parts of it.  Copyright law protects “original works of authorship fixed in a tangible medium of expression.”  17 U.S.C. § 102.  This protection attaches from the moment at which the expression is recorded – in other words, from the moment the pen hits the paper. 

While fictional stories can contain creative and innovative ways of expressing some common themes, the common themes themselves are not protectable.  These are standard story elements – such as a damsel in distress, who is later saved by the proverbial knight on a white horse (e.g., Rapunzel or Sleeping Beauty), the villain who seeks redemption (e.g., Star Wars), star-crossed lovers whose romance is tragic (e.g., Shakespeare’s Romeo and Juliet), an epic journey through which the hero has several adventures (e.g., The Iliad or the Odyssey), or corruption and betrayal by a close friend leading to a tragic downfall (e.g., Shakespeare’s Julius Caesar).  These story elements have existed for hundreds of years, and can be found even in Greek comedies and tragedies that we studied as students in literature classes or in theater programs.

These basic story elements are not protected under the Copyright Act, because to prevent others from copying them would render storytelling completely impossible.  They are generic, standard building blocks in any story.

Stories that include these elements, however, are not completely beyond the protection provided by the Copyright Act.  Instead, the way the story is told – the prose, the narrative, the alliterative descriptions that bring these story elements to life – are all the kinds of unique expression which the Copyright Act protects. 

If someone were to come along and copy verbatim several chapters of a book (or even a shorter amount), the author could still enforce his or her copyrights (subject to some defenses like fair use, expiration of copyright term or independent creation, joint ownership, etc., which are beyond the scope of this article) because of that exact duplication.  The author could not prevent other stories from being written that include a “damsel in distress” element or a “knight on a white horse” element – because those are the generic elements beyond the protection of the Copyright Act.  They can always pursue an action when exact copying of their original, creative text has occurred.

In a recent case, this dichotomy between the protection of the expression versus the lack of protection of an idea was explored further.  In Rucker v. Harlequin Enterprises Ltd., No. 4:12-cv-01135 (S.D. Tex. Feb. 26, 2013), the plaintiff – an author who had written (but not yet published) the first chapter of a romance novel – sued a book publisher for its publication of a full-length novel that allegedly copied her story about a “tall, dark and handsome,” wealthy and powerful male hero, and a beautiful red-haired heroine with green eyes, who was slender, young and strong-willed.  Rucker at 14-15.  She basically argued that the book publisher copied her idea (which she had submitted in a writing contest), put it into a full-length novel, and published it without her knowledge or consent.

The author did not provide any evidence that the publisher had actually seen her submission, but the Court later concluded that because the works were not substantially similar, there was no need to determine whether the book publisher, in fact, had access to her work prior to its own publication.  Id. at 4 n. 2.   In her complaint, the author identified 40 instances of direct infringement in a summary form, but did not provide any specific examples of them.  Id.at 1.  Because the book publisher provided copies of both works in its motion to dismiss, the Court was able to compare both works side-by-side to determine whether a claim for infringement could survive.  Id. at 1-2.

After reviewing both works, the Court recognized that while there were some similarities between the two works, these similarities were “not in legally protected elements.”  Id. at 12.  The Court explained that “a theme or trope that has long existed is not ‘expression’ that the Copyright Act protects.  Rather, infringement requires copying of constituent elements of the work that are original.”  Id.at 13.  In addition, “material or themes commonly repeated in a certain genre are not protectable by copyright, nor are so-called scenes a faire.”  Id.  “Scenes a faire” are later defined as involving “incidents, characteristics or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic, what flows naturally from these basic plot premises.”  Id.(quoting Atari, Inc. v. N. Am. Philips Cons. Elec. Corp., 672 F.2d 607, 616 (7th Cir. 1982)). 

These elements “are not protected because they are strongly affiliated or connected with a common theme and thus are not creative.”  Id.  In other words, there are limited ways available in which these standard story elements can be described.  The Copyright Act does not preclude others from copying these same standard elements, because the ideas themselves are not copyrightable.  Id. at 9 (“Copyright law does not protect an idea, but only the expression of an idea.”) (citation omitted); see also Russ Berrie & Co. v. Jerry Elsner Co., Inc., 482 F. Supp. 980, 986 (S.D.N.Y. 1980) (“shared characteristics of both parties’ Santa toys of a ‘traditional red suit and floppy cap, trimmed in white, black boots and a white beard’ and ‘nose like a cherry’ [were] common to all Santas and not probative of copying.”) (as quoted by Rucker at 13).

Ultimately, the RuckerCourt concluded that “[t]he similarities that [the author] asserts are either stock elements of romance novels or plot elements that naturally flow from the broad themes that the two works share with other works in the same genre.”  Id.at 14.  The Court held that there was no actionable similarity between the two works and dismissed the complaint.  Because the Court held that allowing the plaintiff to amend the complaint would be “futile,” the dismissal was made without leave to amend and with prejudice.

The take-away point from these cases is that unique ways of telling a story will garner protection under the Copyright Act, but one author cannot prevent others from telling stories using the same standard story elements, provided that the other authors tell the stories in their own ways and do not copy verbatim what the original author wrote.

More on the idea/expression dichotomy can also be found in these prior posts:  Common Questions: Can I Copyright My Idea?  and When is a Fictional Character Copyrightable? (and, as later updated).

New Year’s Resolution: Always Read Terms of Service for Social Media Networks!

You should always read very carefully the various terms of service associated with the social media networks in which you participate – particularly with respect to ownership of the material that you post and/or share on these sites.   In other words, do you know who owns what you post?

Recently, one social media site’s public announcement highlighted this question in appalling clarity.  On December 17, 2012, Instagram announced that it had the right to sell any photo that you took and uploaded using its service – in other words, to “commercialize” it.  (SeeCNET’s article about the change in terms: Declan McCullagh, Instagram says it now has the right to sell your photos,” CNET, Dec. 17, 2012.) 
If you are unfamiliar with Instagram, it used to be a standalone company, but was recently acquired by Facebook and is used on Facebook to share customized photos with your networks.
Here’s the rub:  the right to distribute (or not to) is actually an exclusive right set forth in the Copyright Act as being owned EXCLUSIVELY by the copyright owner.  17 U.S.C. §106.  Not by a vendor who handles the distribution.
Unless the author has licensed its ability to redistribute an “original work of authorship fixed in a tangible medium of expression” (as an original photograph surely is) to another, any redistribution of a published work constitutes copyright infringement under 17 U.S.C. §501, and carries certain remedies and penalties depending on the context.
The public outcry in response to this notice was apparently widespread, as Instagram immediately appeared to retract this statement, and stated that users retain the copyrights in their original photographs even when posting them using Instagram’s tools.  Declan McCullagh and Donna Tam, Instagram apologizes to users: We won’t sell your photos,” CNET, Dec. 18, 2012; see also Instagram Blog, “Thank You and We’re Listening,” Dec. 18, 2012.  Its restatement of the policy suggested that Instagram believed the hue and cry to have been solely based on a misunderstanding of the revised terms of use and privacy policies.
 
In this restatement, Instagram explained that ownership rights would not change as a result of this policy, and neither would any privacy settings users have already set.  Current Version of Instagram’s Privacy Policy and Terms of Use, updated Dec. 18, 2012.
The Copyright Alliance points out that this explanation does not meant that Instagram cannot commercialize your images – in fact, the text that Instagram removed was merely a disclosure of the ways in which it “can” use your photos:
“Instagram has issued a statement saying that it has heard its customer’s complaints, is removing the clause that most offended its customers, and reverting to its old terms of use. But ironically, the clause that caused the outrage, and which Instagram says it has removed, was merely a disclosure and acknowledgment by the user of how Instagram could use a customer’s images. Removing that clause alone doesn’t change the license the user grants Instagram. Moreover, even if Instagram reverts to its current terms of service, those terms of use not only permit Instagram to commercialize user posted images in virtually unrestricted ways, they pass the responsibility for paying any royalties or fees owed for such commercialization on to the user who originally posted the works.” (emphasis added).  Read the Copyright Alliance’s full article for more on this point, “Instagram Still Has the Right to Commercialize Your Work (or Why You Should Read Terms of Service Carefully),” Dec. 21, 2012.
The lesson to be learned here is to be proactive with all of your social media use – understand what Terms of Service apply to your use, and whether the company will be using your information in a way with which you are not comfortable.  Review carefully to determine whether by using their site, you automatically grant the site a license to use your content (your text, pictures, video, whatever) without specific notice or obtaining your consent to that specific use. 
And, try to stay on top of changes to these policies in case changes are made that further impose on your privacy or intellectual property rights.  Many of these policies have a “these terms can be modified without prior notice” provision, but the sites may also host blogs that announce new features or changes to their services.  You might want to subscribe to them (through RSS feeds or email) so that you are notified promptly of any advertised changes. 
Here are links to some of the more commonly-used social media sites, and their relevant blogs (if available):
·       Facebook (“Facebook and privacy”; privacy policy; terms of service)
·       MySpace (privacy policy; terms of service; “learn more”)
·       Twitter (blog; privacy policy; status)
·       LinkedIn (blog; community guidelines; privacy policy)
·      Instagram (terms of service; blog)
·       Snapfish (terms of service; privacy policy; sharing FAQ)
·       Google (which owns Google+, YouTube, Blogger, Picasa, and Instagram competitor, Snapseed)
·       Reddit (blog; privacy policy; user agreement; rules; “reddiquette”)
You might also be interested in posts from The Copyright Alliance(their article on Instagram is here) or the Electronic Frontier Foundation(their article on Instagram is here) generally, as they both cover issues like these on a regular basis.