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Thread: Copyright: Fair Use/Appropriation/Derivation/Transformation & Trademark - Patent Law

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    Default Copyright: Fair Use/Appropriation/Derivation/Transformation & Trademark - Patent Law

    There have been several discussions taking place on other threads regarding the application and implications of copyright. This thread is to be the venue for further discussion of the topic.

    Trademark and Patent law are similar and yet distinct from copyright law. They often work in combination with copyright law to offer a more complete protection for the creator. We can discuss those here as well.

    Copyright is a property right created by law. The purpose of copyright is to grant to the creator of an original work exclusive rights to its use and distribution with the intention of enabling them to receive compensation for their intellectual effort. As soon as a work is written or recorded on some physical medium its author/artist is automatically entitled to all copyrights in the work unless and until the author/artist explicitly disclaims them, or until the copyright expires.

    Copyright laws vary between countries, however many countries are signatory to reciprocal agreements that honor the copyrights of the other signatories to those agreements. Most countries laws contain the same basic elements with the greatest difference being the length of copyright protection. There are other limitations involved depending upon the countries involved.

    The holder of a copyright (with rare exceptions) obtains exclusive rights to produce copies or reproductions of the work and to sell those copies; to import or export the work; to create derivative works; to perform or display the work publicly; to sell or cede these rights to others; to transmit or display the work.

    Copyright is usually a civil issue though there are some criminal penalties depending upon jurisdiction and level of infringement. That means that the creator must protect his copyright against infringement by bringing suit and proving the copyright. Copyright protects only the original expression of ideas and not the ideas themselves.

    There are exceptions to copyright law. They include:

    The First Sale Doctrine (Exhaustion Doctrine) - Basically the creator has the right of first sale of the intellectual property. Once sold, the purchaser has the right to resell the property. The first sale doctrine does not transfer the other rights of the creator.

    Market Limitations - There are laws that restrict monopolies, encourage competition, limit discrimination, etc., that affect copyright.

    Legal Limitations - There are various legal limitations on copyright depending on the country involved.

    Fair Use / Fair Dealing - Basically fair use entails using the copyrighted material for other than commercial gain. It also means that the use does not harm the creator's copyright. A reviewer can sample a work even though they get paid to do so. Parody is also generally allowed.
    Embodied in Section 107 of the 1976 Copyright Act are four elements courts must consider when determining whether fair use is an adequate and applicable defense: (1) the purpose and character of the work (i.e. the extent to which the work is transformative, not merely derivative of a earlier work), (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.

    Accessibility: There are exceptions for accessibility for handicapped persons.
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    Default A recent discussion about copyright

    Various copyright discussions from previous threads.

    Quote Originally Posted by herbertwest View Post
    I remember the debate about a month or so ago about the custom-made edition of "The best 2007 american short stories", which from what I understood was an unofficial custom from signed paperbacks... therefore a custom rebound thing for about a hundred copy or so.
    I am still convinced that doing so would be infringing copyrights, but...


    Quote Originally Posted by Randall Flagg View Post
    Quote Originally Posted by herbertwest View Post
    I am still convinced that doing so would be infringing copyrights, but...
    How so (USA CR law)?
    If I buy a Toyota Camry and put gull-wing doors on it, paint it a garish non-factory puke green, stick decals on it that say Atoyot; I can legally sell the individual car I modified.
    P.S. No I don't actually own such a POS.


    Quote Originally Posted by Lurker View Post
    It's legal under the first sale doctrine and Kipling v. G.P. Putnam’s Sons. As long as you don't change anything - then it could be an infringment.


    Quote Originally Posted by Br!an View Post
    Quote Originally Posted by herbertwest View Post
    I remember the debate about a month or so ago about the custom-made edition of "The best 2007 american short stories", which from what I understood was an unofficial custom from signed paperbacks... therefore a custom rebound thing for about a hundred copy or so.
    I am still convinced that doing so would be infringing copyrights, but...
    Books have been rebound for centuries. There is no copyright on the title. You aren't reproducing the content. It's perfectly legal.


    Quote Originally Posted by Randall Flagg
    The "value" is what the market will bear. Almost all rebound books I've seen were curiosities, but people are known to pay a lot for unique things.
    I doubt the trouble and expense to convert a 1/600 'salem's Lot would be worth it. If the book up for auction sells for quite a bit (more than ~$1K), it might be easier to look for one of the other 29 in existence than trying to create one.
    It may well be whatever the market will bear but the fact that anyone can have one of their own for the page block and binding restrains the market, or at least should. If Sai King had them bound himself then I could see a premium. Stu, not so much. The page blank is worth what?, $300?, and an awesome leather binding?, another $300?.

    One of the wonders of book collecting is that no two collectors are alike. Some will value this more highly than others. I'm perhaps too much a realist.

    Quote Originally Posted by Rahfa View Post
    I'll just offer this last observation about copyright infringement...

    The infringement is when you reproduce something without giving up control of the original.

    The problem with Napster is people were effectively copying/recopying a song thousands of times without giving up the song themselves.

    If you sold a CD - or an IPod loaded with music - yeah, you've profited from the music, but you can only do it ONCE.

    With books, you can do whatever you want to your own physical property - rebind, or whatever. Then sell it.

    But you could NOT reprint the story ad nauseum and THEN rebind it - it has to be the original book that was your property. You can do whatever you want with the physical object - but obviously have no rights to the writing itself.

    Same with cars. Buy 100 cars...buy 1000 cars...buy 10,000 cars and remodel them however you want - they are YOUR property but each sale your inventory drops by one.

    If you cut and paste an image of a book cover and post it here, it is THEORETICALLY infringement of the designer's work. However - it clearly falls under fair use where we are all commenting and talking about it.

    That's the fine line that photographers/artists/etc run into sometimes - they're trying to protect the image from mass (free) distribution while not violating our rights to talk about it.

    But - if you took a book cover image, and silk-screened it on to a totebag and resold it as a mass-produced product, that's clear-cut infringement.

    And then of course you get into why karokae bars have to pay a licensing fee to allow barflys to use the published lyrics. Because the lyric is now part of a 'performance,' and if you perform a work publicly, the writer gets a cut if there's money being made. Bar charges for booze, therefore the artist gets a cut; or, if you bought an in-home video game, again, the artist got a cut.

    Copyright is a very complicated issue - what seems like "freedom of speech" is sometimes theft.
    Quote Originally Posted by Br!an View Post
    Quote Originally Posted by MandaBunny View Post

    My question would be this: do the pieces up for auctions violate any copyright laws? This is a sincere question as I'm not well versed in such things and a lot of these things are very similar to the movie adaptations. I would rather something that doesn't look like an artist's lightly veiled, personal take on a movie character.
    It is more than likely infringement since they are being sold. Assuming of course that the artist did not receive permission from the copyright holder.


    Quote Originally Posted by Randall Flagg View Post
    I don't believe Andy Warhol was successfully sued by the owners of Campbell's soup.



    Quote Originally Posted by Br!an View Post
    Quote Originally Posted by Randall Flagg View Post

    I don't believe Andy Warhol was successfully sued by the owners of Campbell's soup.
    That was because the "appropriation" of the soup cans did not cause Campbell's any harm. It was credited with helping sales. If he had been sued he likely would have lost.

    Warhol was sued by others for infringement and settled the suits.



    Quote Originally Posted by The Library Policeman View Post
    I have this limited edition cd pack from one of my favourite bands (well 2 bands formed by the same guy). The cd, mug and t-shirt are housed in an oversized soup can. Wonder if they needed permission for this?
    That's fine. It varies enough from the original that it doesn't infringe.
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    Work for Hire is also an important concept. Is your work yours or your employer?

    The most interesting client I had for copyright wanted to protect his original tattoo art. Most people don't think of tattoos as possible copyright violations, but they certainly could be.

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    I owned my own business and I had the logo "Trademarked". We also developed a proprietary computer program that I had copyrighted. It's an interesting and somewhat difficult process, but worth the effort IMHO
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    In Work for Hire, you typically don't get the copyright. When I wrote the Stephen King Illustrated Companion, the default contract assigned the copyright to the publisher; however, my agent negotiated that right back to me so that I could make use of my own material in the future. Also, people who write novelizations of movies or licensed works in the fictional works of other creators don't have ownership of that material. I can't, for example, publish my Doctor Who story anywhere other than the BBC anthology in which it first appeared.

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    I’m by no means an expert or claim to know very much about the subject other than what I’ve gathered over the years about my use of titles, art, etc on the engravings for my cases. For exterior art engravings I use on my cases I always contact the artist to either commission and/or purchase new art outright or to license existing art for a limited number of reproductions. Even if the eventual owner of the case commissions the art for an engraving, I’m always up-front about our intentions – I want no surprises farther down the line. All of the artists have been very cooperative as long as we are honest about what we’re doing. I make sure that they are aware of what we are doing even if I request an interior piece that is for resale. I think you’d get into a lot of trouble if you tried to pull the wool over on someone.

    My understanding is that the actual titles of books are considered ‘public use’ so can be used on a case with a couple of stipulations. The title/artwork cannot be actually copied, then engraved (as an example, the curved title of “Under the Dome”). King (or someone) paid an artist to get that ‘look’ and it can’t be copied without permission. However, if you used a public (–think free to use-) font and did your own manipulation of the title to get the curve, there would be no problem. One example is the title for ‘Night Shift’. If you compare the title of the book with the engraving on the case the only major difference is the upper portion of the ‘T’. One is straight, one is slanted. The font on the case is a public font – free to use, no problems – the font used on the book has been altered specifically for this book and then copyrighted so you’d be unable to use it without violating copyright.



    I’ve been contacted several times by customers wanting an EXACT reproduction of a title or design. Most are perfectly agreeable and understanding when copyrights are explained. A couple of these contacts were more insistent, I can only assume they were copyright lawyers wondering if I was willing to violate regulations. I explained a time or two but then never heard from them again.

    Hopefully, this post doesn't draw unneeded attention................
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    Just looking up SK at the Copyright office there are 516 files. And that's just under his name.

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    I never considered that there could be a copyright issue with reproducing the title & font. Very intriguiing, thanks for sharing the info.

    " The title/artwork cannot be actually copied, then engraved (as an example, the curved title of “Under the Dome”). King (or someone) paid an artist to get that ‘look’ and it can’t be copied without permission."
    Do you mean that King got a trademark on the title in this manner, or a utility patent about the way the title is being represented, curvily?


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    The presentation can be copyrighted -- the same as the interior layout. When another publisher acquires the reprint rights to a book (for a limited edition, for example, or even for the paperback version), they cannot reproduce the way the book was laid out, including title style or embellishments within the text unless that was part of the deal.

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    Quote Originally Posted by herbertwest View Post
    Do you mean that King got a trademark on the title in this manner, or a utility patent about the way the title is being represented, curvily?
    I can't say for sure that he owns the trademark - I've never actually looked it up - But i have to assume that SOMEONE does. It may be the publisher, King, the artist or some corporation. All I know is that I don't want to copy and use it as is - the last thing I want to happen is some bunch of lawyers contacting me about copyright infringement!! From my perspective,an abundance of caution is the best bet!

    I would be curious if anyone has specific info about the legality of using an author's name without permission on something like my cases. On the face it would seem to be a no-brainer that it wouldn't be a problem (as long as a public font was used.). It could be looked at as an actual part of the book, part of the title, book presentation, etc. It would just help in book recognition -or more accurately case recognition ( like he needs MY help in recognizing his book!! HA). But on the other hand, can an author's name be copyrighted so it couldn't be used? Or would it be looked at as available for public use?
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    Quote Originally Posted by Lurker View Post
    Just looking up SK at the Copyright office there are 516 files. And that's just under his name.
    This is going to keep me up way too late! I know there is a Stephen King artist and a Stephen King computer business owner. As we look through the titles it is interesting to try and guess which ones may be unpublished stories. What do you think? Other than I have too much time on my hands LOL

    John
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    Quote Originally Posted by herbertwest View Post
    Do you mean that King got a trademark on the title in this manner, or a utility patent about the way the title is being represented, curvily?
    A utility patent is only for an invention - books etc can't be patented. I did look up trademarks and a production company got one for "STEPHEN KING'S STORM OF THE CENTURY" but that is a film. Altho you can't trademark a title, you can TM a series: "Wheel of Time" and the circle design has been trademarked for those books. He could probably TM "The Dark Tower".

    Quote Originally Posted by chaos-consultants View Post
    This is going to keep me up way too late! I know there is a Stephen King artist and a Stephen King computer business owner. As we look through the titles it is interesting to try and guess which ones may be unpublished stories. What do you think? Other than I have too much time on my hands LOL

    John
    Have fun with that!

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    You're not gonna believe this. I just heard it on the radio. Apparently "Wiki" and a "Photographer" are engaged in a legal battle over a copyright. Apparently, the Photog somehow managed to get Indonesian moneys to take "selfie's". Wiki got a hold of them and posted them online. The Photog said "Wait, no they are copyrighted as I arranged for the photo's to be taken". Wiki replied that only humans can apply and be issued a copyright and since these photo's were actually taken by the monkeys, tough titty!!! LOL

    I'm gonna go see If I can confirm the story online, but ain't life grand?

    Damn, if it ain't true!! LOL


    http://lightbox.time.com/2014/08/06/monkey-selfie/#1
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    Quote Originally Posted by Merlin1958 View Post
    You're not gonna believe this. I just heard it on the radio. Apparently "Wiki" and a "Photographer" are engaged in a legal battle over a copyright. Apparently, the Photog somehow managed to get Indonesian moneys to take "selfie's". Wiki got a hold of them and posted them online. The Photog said "Wait, no they are copyrighted as I arranged for the photo's to be taken". Wiki replied that only humans can apply and be issued a copyright and since these photo's were actually taken by the monkeys, tough titty!!! LOL

    I'm gonna go see If I can confirm the story online, but ain't life grand?

    Damn, if it ain't true!! LOL


    http://lightbox.time.com/2014/08/06/monkey-selfie/#1

    Yes it's true, it's been all over the news for a few weeks now. And apparently it cant be copyrighted
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    Brian, that's a great selfie of you! I'm pretty sure you can copyright this since you are most likely human.

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    Quote Originally Posted by Dolso View Post
    I would be curious if anyone has specific info about the legality of using an author's name without permission on something like my cases. On the face it would seem to be a no-brainer that it wouldn't be a problem (as long as a public font was used.). It could be looked at as an actual part of the book, part of the title, book presentation, etc. It would just help in book recognition -or more accurately case recognition ( like he needs MY help in recognizing his book!! HA). But on the other hand, can an author's name be copyrighted so it couldn't be used? Or would it be looked at as available for public use?
    Didn't Harlan Ellison tradmark his name or some such nonsense? I don't pretend to understand the legality of all the copyright laws, but I think most authors and their agent's wouldn't bat an eye at your use on cases like that. Except for Ellison, perhaps.

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    Quote Originally Posted by Dolso View Post
    I would be curious if anyone has specific info about the legality of using an author's name without permission on something like my cases. On the face it would seem to be a no-brainer that it wouldn't be a problem (as long as a public font was used.). It could be looked at as an actual part of the book, part of the title, book presentation, etc. It would just help in book recognition -or more accurately case recognition ( like he needs MY help in recognizing his book!! HA). But on the other hand, can an author's name be copyrighted so it couldn't be used? Or would it be looked at as available for public use?
    Use of a name would fall under what's called "right to publicity" and that is a state issue, not federal. The specific law would depend on what state you live in.

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    Dick, the use of Stephen King's name or likeness on a product is a risky one. It is almost like you are suggesting his approval and or endorsement of the product without his permission to do so. I would suggest treading very carefully on that score.
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    What about book blurbs?

    I've read that they are copyrighted materials, as are bookcovers... but on the other hand, I think/guess, that reproducing front & back covers is TOLERATED by publishers.
    It is a common practive that book covers are shared online (eg : amazon, ebay, abebooks, publisher's websites), and thus helps promoting the work. Furthermore, I would say that it's different from the subject of fair use, as this is not an excerpt of the work itself....

    So my opinion is that it's a grey line question : officially copyrighted, but would be complicated to sue the whole internet, and therefore it's tolerated.
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    Book cover art is not an excerpt of the work (i.e. the book), but it's a reproduction of the artwork, which is itself copyrighted. Using a book cover falls under the "fair use" doctrine if the cover is used in conjunction with criticism, comment, news reporting, teaching, scholarship and research. Some experts recommend crediting the cover artist, which would be looked upon favorably by a court if it came to that. "Transforming" the cover images to smaller sizes (low resolution thumbnails, for example) helps, according to the Perfect 10 v. Google ruling.

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    What about the TEXTS from the covers, and not the artwork?
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    Quote Originally Posted by Rachel Readman View Post
    Dick, the use of Stephen King's name or likeness on a product is a risky one. It is almost like you are suggesting his approval and or endorsement of the product without his permission to do so. I would suggest treading very carefully on that score.
    I'm curious if King has asked permission for every product name, title of a book etc. in all the books he has published. Like, if somebody was drinking Coca-Cola or throwing a piece of trash into a Dumpster, or the politicians he mentions. Did they approve of that use? Or all the guns and vehicles?

  25. #25
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    From what I can see, King gets permission for quoted song lyrics. Not much if anything else.

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