Tuesday, June 26, 2007

Five to Ten and 100K: Copyright Infringement

My friend Chris asked in an earlier entry’s comments section what sorts of punishments are doled out for copyright infringers. Like all other things copyright-related, charges of infringement are tinged with gray.

In the easiest cases, it’s nearly black and white: a creator who holds a copyright can point to another person who has clearly stolen his work, line for line, and who has passed it off as his own or used it for personal or financial gain. When copyright was in its infancy, this was the only way that a case for infringement could be brought to court: if an exact replica had been made. This overly simplified take was soon outgrown by the burgeoning creative marketplace, and rulings in infringement suits began to lean more heavily on intuition and subjectivity rather than only the letter of the law (which was already somewhat clouded with gray). These cases fall under the term “substantial similarity”—legalese for copying that is not verbatim. Herein begins the mass of swirling gray, because “substantial similarity” is highly subjective.

The majority of copyright infringement cases today regard substantial similarity rather than literal word-for-word copying. Whereas previously Plaintiff Polly could only have a case against Defendant Danny if he reproduced her short story verbatim (or very close to verbatim), Polly may now have a case if she thinks Danny has stolen the plot line or characters from her story.

Wait a minute, you’re saying. I remember that you explained to us from the start that only the expression of ideas is copyrightable, not the ideas themselves. So how can Danny get sued for using the same plot as Polly? Isn’t the plot just an idea? And come to think of it, aren’t there supposed to be only a few dozen plot lines existent in literature anyway? (Meaning that pretty much every writer everywhere ever has infringed.) To all this I say—a perfect example of the glorious ambiguity that is copyright!

Determining someone’s guilt or innocence in an infringement case takes into consideration several factors.

1. KNOWLEDGE. If a defendant had no prior knowledge of the work he infringed (so if Danny never read any of Polly’s stories), then he’s off the hook. Sort of. Of course there’s a loophole: If the plaintiff (Polly) can prove that the defendant (Danny) was exposed to her work, even if he has forgotten it—so, in essence, subconscious knowledge—then she may be able to win her case. So let’s say that one day in the waiting room of his doctor’s office, Danny skimmed through an old issue of the New Yorker looking at snippets of stories without paying much attention to the fact that they were written by Polly. This means that he has subconscious knowledge of Polly’s writing. This loophole strikes me as particularly ridiculous, because how much of what we do, say, and create comes from our subconscious? A hell of a lot, I tend to think. How can someone even prove something like this, I wonder? I’m imagining mind probes or something similarly sinister. Moving on.

2. ORIGINALITY. In other words, is the plaintiff’s work itself validly copyrighted, or did the plaintiff herself infringe on another’s work, knowingly or not? Is Polly a conscious or unconscious/subconscious infringer herself? If the plaintiff herself is found to have infringed in any way, her claim to the copyright of those elements becomes invalid, which means the defendant could possibly be off the hook.

3. PROTECTABILITY. The court must also examine whether the material can be copyrighted or if it cannot—like an idea, a historical fact, and so on. This can often prove to be no easy task. For instance, in Polly’s case, the court would have to determine just how closely Danny’s alleged infringement encroaches on Polly’s work. Are both story plots something commonly found in literature, like a love triangle, or does Polly’s contain a unique twist (say, one of the members of said love triangle is a cockatiel) that Danny’s also contains? Are both main characters the typically tragically flawed hero, or does something unique set them apart? (For instance, both Polly’s and Danny’s protagonists have a speech impediment and a fondness for Gouda, both are orphans, and both solve crimes with the aid of a Pekinese.) If the similarities seem to be more than mere coincidences, then a case for infringement can be made. But if the similarities seem more general and coincidental (both protagonists are named Charles and wear glasses, for instance), then there tends to be less of a case for infringement.

4. SUBJECT. This piggybacks on number 3. The subject matter affects how similar the two works in question are, so courts must examine the intent of each work. When looked at individually, Polly and Danny may have characters or plot lines that are similar when looked at in isolation, but when looked at in the context of the whole piece, differences may be found. (Polly’s story is a serious literary work whereas Danny’s story is a very funny piece poking fun at society.) Courts examine these cases not in an analytical, dissect-every-detail fashion but rather as observers—as consumers of the product. Of course this method works better for creative works than for more technical works such as computer software. But just because only one element of another’s work appear in an otherwise original work doesn’t mean that infringement hasn’t occurred. Danny’s story may only have copied Polly’s bizarre love triangle and nothing else, but the court may still rule it as an infringement. As with everything copyright related, nothing is set in stone.

So let’s say defendant Danny is finally found guilty of copyright infringement. What are the damages? Let’s back up one step first. In order for someone in the U.S. to even sue for copyright infringement, the copyright must be registered, and that registration must be done within three months of first publication or prior to the infringement if the work is unpublished if the person wants to collect statutory damages and legal fees. Even though registration of copyright is no longer required in the U.S., it’s still a good way to cover your bum legally.

The conditions for suing a copyright infringer are:
• the case must be brought in federal court within three years of the infringement;
• the copyright must be registered;
• only the copyright owner(s) can sue.

What does the plaintiff get if the infringer loses the case?
• The actual damages (such as compensation for lost profits, tarnished reputation, and lost business opportunities)
• Any profits the infringer made from the infringed work, if these profits exceed the plaintiff’s lost profits
• Possible reimbursement of court costs and attorney’s fees

If a plaintiff can’t prove the actual damages inflicted by the infringer, statutory damages may be in order. These can be no lower than $200 and no higher than $20,000 for unwillful infringement; willful infringement can fetch as much as $100,000 or higher. Willful infringers can be sent to jail and/or fined in the six-figure range if they are criminally prosecuted, but these tend to occur primarily in cases against pirates, smugglers, and software “Robin Hoods” (arrrgh, walk the plank, ye scurvy knave!). Plaintiffs, whether they receive damages or not, may be able to get injunctive relief that forbids the infringer from infringing further.

I’m sure that some of the infringement cases brought to court are really ludicrous, and I’m actually pretty rattled by the subconscious stipulation. I’m sure that if someone were willing to take things far enough if could be argued that just about everything we create stems from some prior subconscious exposure to it. It seems difficult or even impossible to prove that another person who unknowingly infringed on your work had subconscious prior knowledge of it.

Consider a situation from my own life: my freshman year of college, I wrote a one-act play for a class about a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work. And a few months after my play was written and graded (I got an A, thankyouverymuch), the movie Office Space was released, a movie where the main character is a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work.

I’ve pointed out the similarity between the two to my friends, and I was actually quite proud that I’d managed to beat the curve and write something trendy. But whereas Office Space went on to become a huge cult classic, my play has been seen by perhaps a grand total of twenty-three people (I’m being generous here). So does this mean that if one day my play does happen to become a huge off-Broadway hit that Mike Judge can sue me for infringement, even though I wrote my play and staged it before I was even consciously aware of the existence of Office Space and before it had been released in theaters? Am I an infringer? Did I subconsciously feed off of Mike Judge’s creative vibe and channel it into my own play?

So there you have it. The muddled messes of fair use and copyright infringement. Seems like you’re damned if you do and you’re damned if you don’t. It almost makes me wonder how anyone is brave enough to pick up a pen at all anymore to create anything new. I’ve had similar feelings of apprehension; I had started plotting out a novel and adding in elements when I realized that some of the elements were similar to another novel that I had read about a year prior. I hadn’t been thinking about that particular novel at the time I was writing my own plot line, but as I wrote the plot I was shocked to realize the similarities. Was it my subconscious dredging up the memory of the novel I’d read the previous year? Or was it just such a common plot element that a lot of novelists like to throw it into their plot lines? I was so stunned that I’d seemingly recreated another novelist’s book without even thinking about it that I stopped working on the novel, putting it aside to work on some other time. I haven’t touched it since.


I’ll be examining some famous infringement cases and offering my insights in a future entry. And I’ll be talking about the tangled web of public domain.

The Copyright Book: A Practical Guide (Fifth Edition) by William S. Strong
This book provides excellent advice to all creative types out there in easy-to-understand, legalese-free language.

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