passage as a close paraphrase
of highly original expression.
( Salinger v. Random House, 811
F.2d 90 (2d Cir. 1987).)
Remember: A work’s overall pattern
concept and feel had been copied. Reyher
or fundamental essence must be copied
lost. The court held that although the
for there to be infringement. If only a
two stories had the same plots and similar
few of a work’s unprotectable elements
situations, they differed in almost every
themselves are similar—for instance, stock
other way, including the setting, theme,
characters, situations, or plots—there is no
characterization, and mood. Thus the two
infringement. Most authors who bring total
works’ total feel was not the same. ( Reyher
concept and feel suits lose their cases for
v. Children’s Television Workshop, 433 F.2d 87
this reason.
(2d Cir. 1976).)
EXAMPLE: Reyher published a children’s
Remember too that a work’s fundamental
story derived from an old folk tale about
essence or total concept or feel must be
a child who becomes separated from her
original—that is, independently created—to
mother. To strangers, the child describes
be protected. The less originality involved in
her mother as the most beautiful woman
selecting and combining a work’s constituent
in the world. When she is final y reunited
elements, the less copyright protection it
with her mother, the mother turns out to
will receive. For example, works of fancy
be homely in appearance. A story with an
that are written according to tried-and-true
almost identical plot was subsequently
formulas—for example, Gothic romances,
published in a children’s magazine. There
Westerns, police shoot-’em-ups, and buddy
was no verbatim copying or paraphrasing.
movies—are accorded less protection than
Reyher sued the magazine for copyright
highly original works of art containing
infringement, claiming that her story’s total
uncommon themes, characters, or plots.
290 | THE COPYRIGHT HANDBOOK
When Copying Protected
constitute infringe ment. See Chapter 5,
Expression Is Excused
“What Copyright Protects.”
In some cases, authors are al owed to copy
other authors’ protected expression without
Fair Copying: The Fair Use Privilege
permission. This may occur through operation Copying of protected expression will also
of the merger doctrine (legalese for situations
be excused where it constitutes a fair use
where there are only a few ways to express an
of the material. The fair use privilege
idea or fact) or where the copying constitutes a applies primarily in situations where an fair use of the protected expression.
author quotes or otherwise uses a limited
amount of protected expression for scholarly,
Unavoidable Copying: The
educational, or other nonprofit purposes. See
Merger Doctrine
Chapter 10, “Using Other Authors’ Words.”
Sometimes an author has no alternative
but to copy or paraphrase another author’s
Self-Help Remedies for
words. This occurs where there is just one
Copyright Infringement
way, or only a few ways, to adequately
express a particular idea or fact. In these
Assuming you have a valid infringement
cases, the idea or fact and the way it’s
claim, you may be able to obtain a
expressed are deemed to merge and the
satisfactory resolution of an infringement
expression—the first author’s words—is
claim on your own. Depending on the
given very limited copyright protection or
circumstances, simply sending the alleged
no protection at all. The merger doctrine
infringer and his or her publisher(s) (who
applies mainly to factual works such as
are also liable for any infringement; see
histories, biographies, and scientific treatises below) a cease and desist letter may do rather than to works of fancy such as
the trick. This sort of letter serves several
novels, plays, and poems. This is because by functions simultaneously:
their very nature, facts provide their own
• It lets the infringer know that you
limitation of how they can be described,
believe he or she is infringing on your
while the ideas present in fictional works
copyright.
can almost always be written in new and
• It establishes a date for your discovery
different ways.
of the infringement. This is important
As a result of the merger doctrine, in
for purposes of the statute of limitations
some cases verbatim copying or close
on copyright infringement lawsuits
paraphrasing of even a substantial number
discussed below.
of words from a factual work may not
• It tells the infringer you intend to stop
him or her.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 291
• It gives the al eged infringer a chance to court. Accordingly, avoid being nasty, cute, explain his or her conduct and perhaps
tentative, or overly dramatic.
offer a satisfactory compromise before
Cease and desist letters should be sent by
you spend a lot of money initiating a
certified mail, return receipt requested. If
lawsuit. Even if you’re sure you’re right,
the infringer refuses to accept your letter,
it doesn’t hurt to listen to the other
arrange to have it delivered personally by
person’s story. In addition, by giving the someone who isn’t involved in the dispute
infringer a chance to respond, you may
and who’ll be available to testify that the
find out a lot about how he or she plans letter was delivered. You may have to hire
to defend a court action if you choose to a process server to deliver the letter if you
bring one.
don’t know anyone who can do it for you.
EXAMPLE 1: Sal y, a freelance writer,
Contents of a Cease and Desist Letter
discovers that The Plagiarist’s Review has
A cease and desist letter should normally
reprinted without her permission an article
she wrote and published several years ago
include:
and to which she retains all the copyright
• your contact information
rights. Sal y sends the magazine’s editor the
• the name of your work, date of first
letter shown below.
publication, and copyright registration
number if the work was registered
For more samples, check out the
• the nature of the activity you believe to thousands of cease and desist letters at the be an infringement of your copyright
Lumen database (https://lumendatabase.org).
• a demand that the infringer cease and
EXAMPLE 2: James obtained his Ph.D. in
desist from the activity and pay you
French history four years ago. His Ph.D.
for any damages you’ve sustained,
dissertation, entitled The French Chamber
or simply pay your damages if the
of Deputies, 1932–1940, was microfilmed
infringement is not still going on, and
and made available to researchers in various
• a request for a response within a stated
research libraries around the country. James
time period.
timely registered the dissertation with the
Your letter can threaten legal action, but
Copyright Office. He discovers that three
you’re probably wiser not to at this stage. The
chapters of his dissertation have, without his
specter of imminent legal action is likely to
permission, been copied almost verbatim in
make the other person paranoid, defensive,
a new textbook on French history “written”
and unwil ing to cooperate. It may also send
by Professor Cole and published by Copycat
him or her straight to a lawyer.
Press. James sends the letter shown below to
When you draft your letter, remember
Copycat Press and a copy to Professor Cole.
that you may end up wanting to use it in
292 | THE COPYRIGHT HANDBOOK
as making the infringement legal through
January 1, 20xx
a license under which you’re paid an
Editor in Chief
agreed-upon fee for the use of your work
The Plagiarist’s Review
(see Chapter 8, “Transferring Copyright
100 Copycat Lane
Ownership”) and getting the infringer
New York, NY 10000
to stop future infringements. The fee, of
Dear Sir:
course, is subject to negotiation. It should
include a penalty for the inconvenience the
I recently became aware that your magazine
infringer caused you—probably at least
published in its November 20xx issue an
50% more than you would have charged
article entitled “Old Ideas In New Bottles.” I
original y wrote this article in January 2010
had the infringer asked you for permission
and it was first published in June 2010 in The
to use your work in the first place.
Patawamee Magazine.
Any compromise settlement should be in
writing and signed by all the parties.
I own all of the rights in this article. Since I
never authorized you to reprint the article in
EXAMPLE 1: Sal y Bowles in the example
your publication, it fol ows that you infringed
above agreed to grant The Plagiarist’s Review a
upon my copyright by doing so.
retroactive nonexclusive license to publish her
This letter is to demand that you immediately
article. In return, the Review promised to print
cease and desist from sel ing any copies of The
a correction in a future issue stating that she
Plagiarist’s Review containing the infringing
was the author of the article; it also promised
article. In addition, I demand to be reasonably
to publish and pay for two new articles by Sal y
compensated for the use of my article in the
in upcoming issues. Sal y felt that was better
copies that have already been sold.
than just getting a one-time payment for the
unauthorized use of her old article.
Please respond to this letter by January 15, 20xx.
She sends the compromise settlement
Very truly yours,
letter shown below.
Sally Bowles
Sally Bowles
EXAMPLE 2: Since James, the author of the
dissertation The French Chamber of Deputies,
1932–1940 in Example 2, above, had timely
registered his dissertation with the Copyright
Office, he might be entitled to substantial
Responses to Cease and Desist Letters
statutory damages if the case went to court.
What happens after the alleged infringer
Accordingly, Copycat Press agreed to pay
receives your letter typically depends on the
James $3,000 to settle the matter (this was
nature of the infringer and the infringing
50% more than James would have charged
conduct. Hopefully, it will be possible for
had Copycat asked him for permission to use
you to work out a reasonable solution, such
his work in the first place). In return, James
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 293
agreed to release Copycat Press from liability
Compromise Settlement Letter
for infringing on his work. James was not able
to reach a settlement with Professor Cole,
February 28, 20xx
who denied copying from James’s dissertation.
President
James decided to pocket the money and
Copycat Press
forget pursuing his case against Cole.
100 Grub Street
James sent Copycat Press the agreement
Boston, MA 10001
shown below.
Dear Sir:
I recently discovered that three chapters,
total ing 130 pages, from my Ph.D. dissertation,
Overview of Copyright
entitled The French Chamber of Deputies, 1932–
Infringement Lawsuits
1940, have been copied nearly verbatim in your
recently published title All of French History,
If you can’t satisfactorily resolve the matter
by Professor S.T. Cole. Enclosed is a copy of the
yourself (perhaps with a short consultation
chapters in question along with a copy of the
with a copyright lawyer), you have two alter-
dissertation’s title page; note the copyright
natives: Forget about it or hire a lawyer and
notice in my name. The dissertation was
bring an infringement suit in federal court.
registered with the Copyright Office on July 15,
The fol owing is an overview of the nuts and
20xx; the registration number is TX123456.
bolts of a copyright infringement suit. It is
I do not know Professor Cole, have never
intended to give you a general idea of what
been contacted by him, and never gave him
you can expect from copy right litigation,
or anyone else permission to use material
not as a substitute for further research or a
from my dissertation, to which I own all the
consultation with an experienced copyright
copyright rights.
attorney. See Chapter 15, “Help Beyond This
This letter is to demand that you immediately
Book,” for a guide to further research and
cease and desist from sel ing any copies of All
ways to find a copyright attorney.
of French History containing the material from
my dissertation. In addition, I demand that I
be compensated for the use of my dissertation
Who Can Sue
in the copies that have already been sold.
A person or an entity who files an infringe-
Please respond to this letter by March 15, 20xx.
ment suit is called the plaintiff. The plaintiff
Very truly yours,
must be someone who owns the copyright
James C. McCarthy
rights at issue, or who is entitled to receive
James C. McCarthy
royalties from them. This will typically be
cc: Professor S.T. Cole
Department of Humanities, Elite College
the author or the publisher to whom the
Marred Vista, CA 90000
author has sold some or all of his or her
rights to the work.
294 | THE COPYRIGHT HANDBOOK
EXAMPLE: Bill writes a biography of Saddam Liability for Removing Copyright
Hussein and sel s his repro duction and
Management Information
distribution rights to Scrivener & Sons. Leslie
copies a substantial portion of Bil ’s book in
In 1998, Congress created a new legal basis
her own published biography of Saddam.
for suing copyright infringers. The Digital
Both Bill and Scrivener are entitled to sue
Millennium Copyright Act (DMCA) makes
Leslie for copyright infringement of the
it illegal to remove “copyright management
exclusive rights to reproduce and distribute
information” from copyrighted works and
the work.
gives copyright owners the right to sue
for damages people who do so. This is in
Deciding who does and doesn’t own
addition to any rights they may already have
derivative rights in a work in the context
to sue such people for copying their works.
of a copyright infringement action is often
The main intent behind the new law
complex. For example, an author may
was to prevent infringers from removing
transfer film rights to one person or entity,
copyright notices and other ownership
tele vision rights to another, and foreign
information from material placed in the
language translation rights to still others.
online world. Thus, several courts have held
And, unless prohibited in the original
that the law applies only to copyright notices
transfer of rights, they may be further
that function as a part of an automated
transferred and divided—for example, the
copyright protection or management system
entity that buys the TV rights may transfer
or that are digitally placed on a copyrighted
Japanese TV rights to someone else. Often,
work. ( The IQ Group, Ltd. v. Wiesner
an author who transfers all or part of his
The Copyright Handbook Page 51