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How To Make A Living Writing Short Fiction – can it be done? Yes.
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Saturday, July 04, 2009

On the $1.9 million filesharing fine
Recently, it was all over the news that a woman was fined $1.9 million for illegally downloading 24 songs. Which is of course a miscarriage of justice, an outrage, crazy, appalling, whatever you want to call it.

In reality, the RIAA and related groups have mostly stopped suing people ... part of my day job is processing the big scary cease-and-desist emails they send to the university I work for. The emails include dates, times, IP addresses, files shared, etc. My job is to identify which sysadmin is responsible for the network the illegal filesharing incident occurred on, and to send the notes along to him or her. If the infraction involved our wireless network, I figure out who the student was and forward the messages along directly (and then deal with the panicky/angry emails the student sends back).

We get dozens of RIAA/movie studio notices each day, and have been for over a year ... I'm not aware of a lawsuit having emerged from any of them.

Mostly, the companies want to scare people into not illegally sharing/downloading movies and songs etc. -- so the occasional highly-publicized, wildly-expensive lawsuit fits into that scheme -- but in general they're not going after little fish other than to send warnings.

Occasionally, of course, a filesharer gets unlucky ... I don't fileshare myself for a variety of reasons, and one of them is certainly because I don't want to "win" the lawsuit lottery when it's easy enough to get music and movies legitimately.

The need for tort reform and the need to disengage our legal system from corporate influences aside, here's my public service announcement:

If you're going to share files on a traceable server, share the good stuff (ie, not stuff you could've scored for 50 cents from a neighborhood garage sale). Don't be like all these students I've seen who got dinged over filesharing "My Humps". There's just no dignity in that.

Unless it's this version of the song:



Monday, July 11, 2005

Copyright Law: Merger Doctrine

U.S. copyright law is intended to foster artistic and intellectual endeavors by protecting creators' rights and thus their livelihoods. However, copyright law can easily turn into a stifling intellectual monopoly (some MP3 fans would argue that this has already happened). Thus, the law contains a lot of compromises to try to keep it fair to other creators and to works' users.

The "merger doctrine" is one such compromise aimed at keeping creators from claiming unfair rights.

One of the basic tenets of copyright law is that you can't copyright ideas (industrially-useful ideas can be protected by patents, but that's a whole different subject), just the original expression of those ideas. This is codified in Section 102(b) of The Copyright Act:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

But it seems like someone could get around this by copyrighting, say, a dozen different little ways of expressing the same simple idea so that nobody else could feasibly use that idea, doesn't it? That's where the merger doctrine comes in: if there are a limited number of ways that somebody can express an idea, then you can't copyright expressions of that idea at all. This is to keep the idea itself free for everyone to use.

For instance, you can't copyright the sentence "Fred spoke." Sure, you could write it "Fred made an announcement" or "Fred shouted" or the all-time favorite "Fred ejaculated", but when you come down to it, it's expressing the simple idea of a man speaking. There are only so many ways to express that. (Whatever Fred says can of course be copyrighted if it otherwise meets the not-too-difficult criteria of original expression, of course)

The merger doctrine was upheld in a case called Toro Co. v. R&R Products Co. in 1986. The 8th Circuit Court ruled agreed that the doctrine is important in keeping a creator from monopolizing an idea. Most courts since then have ruled that the doctrine prevents an author from copyrighting a passage in the first place. However, some have ruled that the creator can copyright the passage, but that others will only be guilty of infringement if they use the exact same expression (many people don't realize that they can normally be found in violation of copyright even if they change the wording of a passage somewhat).

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Tuesday, June 07, 2005

Why you can rent a novel but not a music CD

As a college student, I really came to love used record and book stores. Sometimes I'd find the most amazing books and albums that had been out of print for years. And sometimes, I'd be able to find brand spankin' new stuff that I just couldn't afford at Borders or Tower Records.

Later on, I was still broke but in grad school studying journalism. I started to learn about copyright law. More important, I started to get to know authors who were just as broke as I was but who didn't have a light at the end of their financial tunnel in the form of earning a commercially viable degree. Copyright was more than an abstract concept to them -- article sales and royalties paid their rent and kept food on their table.

Armed with just enough copyright knowledge to keep me out of court for libel and my new insights into the working author's life, I saw used bookstores and CD shops in a whole new light. All these books and albums for sale -- and no money to the publisher! No royalties to the authors! Holy shit!

Was the FBI gonna come busting down the doors of Half Price Books for copyright infringement someday? Because it all certainly seemed like a violation of the spirit of copyright -- the stores were doing a pretty brisk business, and every used copy sold was money that never reached the creator. But still, my author friends visited the used shops just like everybody else did, and for the same reasons: they wanted stuff that was not available elsewhere, or they just couldn't afford to pay for new.

While some big-name musicians like Garth Brooks periodically raised a stink about used CD sales, it seemed that everyone turned a blind eye to the whole thing because cracking down on used bookstores would create far more problems than they'd solve.

As it turns out, selling used books, CDs, movies and software is perfectly legal due to what's known as the "first sale doctrine".

Section 109 of the U.S. Copyright Act codifies this doctrine. Anyone who is a lawful owner of a physical copy of a copyrighted work can do as they please with that physical copy.

They can destroy the copy, paint it pink, put blinkenleits all over it, rent it to somebody, or transfer ownership by giving it away or selling it. They can't, of course, duplicate the copyrighted content or reuse it or sell it in some way -- the first sale doctrine deals with the physical object, not the intellectual expression it contains.

However, when cassette tape players and recorders came along, the U.S. recording industry started to fear for their profits. (Sound familiar? You bet!) So, they put their vast financial resources to work influencing legislators. In 1984 the Record Rental Amendment was passed on the logic that renting out albums made it too easy for people to copy music without paying for it, thus dreadfully harming the RIAA's copyrights.

As a result of that amendment to Section 109, you can't rent an audio CD or tape or phonograph. Due to legal extrapolations of the Record Rental Amendment combined with the fact that software is often set up for licensing rather than sale, you can't rent a piece of software, either ... unless you're talking about a video game, which is not seen by the courts as being software. At any rate, that's why you can't rent the latest Britney Spears opus at Blockbuster along with Fatal Frame for your Playstation.

Fortunately, the RIAA didn't take the step of preventing libraries from lending out music albums, nor have they seriously attempted to stop the sale of used CDs. However, all that could change if they decide that these activities are excessively limiting their profit margins.

The book publishing industry, by contrast, has neither the lobbying power nor the motivation to try to change the laws as they exist.

It's perfectly legal to rent a novel, for instance, but sadly reading just isn't popular enough to support the development of a Bookbusters chain.

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Thursday, June 02, 2005

Is file sharing theft?
Asking "Is file sharing theft?" is a bit like asking "Is driving a car murder?" (If during the course of a drive you intentionally run somebody down with your car in an effort to kill them and they die, yes, of course it's murder ... but otherwise, no.)

File sharing is, as a general concept, not a problem. It's a perfectly legal thing to do if you either own the materials you're sharing or have the right to share them because they're in the public domain or the owner has granted permission for them to be shared.

The real question is ....

Is file sharing other peoples' intellectual property theft?

Now we're getting down to business!

What is theft?

Theft, all by itself, is a general term that is not given a technical legal definition at the federal level in the U.S. (some states do define it; others don't). It's often used synonymously with larceny (which is defined technically, which we'll get to in a minute).

The 'Lectric Law Library Lexicon defines theft as commonly meaning to secretly and dishonestly take someone else's property (in other words, steal it) for the sake of money (either to sell the property or to simply avoid paying for it). It further defines theft-bote as being the crime of knowingly receiving stolen property from a thief.

Thus, both stealing an item and receiving stolen items can be considered forms of theft under those definitions.

The Oxford Dictionary of Law (which covers British law, which is similar but by no means identical to U.S. law) defines "theft" as "The dishonest appropriation of property belonging to someone else with the intention of keeping it permanently."

Criminologist Thomas O'Connor states that "all modern theft laws have their origins in the ancient law of larceny."

He further says that:

Larceny is the wrongful taking and carrying away of personal property which is in the possession of another with the intent to convert it or permanently deprive the owner thereof.

Okay, so what's larceny? And what has it got to do with filesharing?

According to O'Connor and other sources, classic criminal larceny involves:

  1. Wrongfully taking something from someone else (stealing) To do this you have to have control over the object -- but it doesn't have to be actual physical control. You can claim that a book on a shelf is yours and sell it to someone else. When the person walks off with the book they think they've legitimately purchased, they have not committed larceny, but you have. When an item has been taken for personal use, a common defense is to claim that the person was only "borrowing" the item and intended to return it. In that case, it's up to the court to decide whether the evidence surrounding the incident indicates an intent to steal or a real, honest intent to return the item.
    • The act of ripping and making a copyrighted MP3 available for upload has been seen by the courts as wrongfully taking control of an intellectual property. Once other anonymous users have downloaded copies, there's no feasible way to "give it back" to the rightful owner. On the downloading side, however, a user who downloads an illegal copy, tries it out, and then deletes that copy could arguably be seen as just having "borrowed" it.

  2. Taking the item away from the place it was stolen (asportation) There's a lot of variance in how this is interpreted. For instance, in some states, a person can be convicted of shoplifting if they are observed taking and sequestering an item but abandon it in the store before they are apprehended. Theft laws also cover people who can't really asportate anything in a legal sense, such as a parking lot attendant who is given a customer's keys and then goes for an extended joyride in the car.
    • Transferring a file to a fileshare server certainly seems to fulfill the broad asportation criteria, as does downloading it.

  3. The stolen item being personal property. According to modern laws, personal property can be real property (land, houses, etc.), tangible property (moveable things like cars), services, information, intellectual property, and even contraband. Under the vast majority of legal systems, the value of the item determines whether the act of stealing it is considered a misdemeanor, felony, or civil matter.
    • Courts have well and thoroughly upheld that reproduction rights to things like songs and stories and art are valid intellectual properties. Thus, the extent of the financial damage to the holder of the copyright determines whether or not the case would be pursued as a felony, misdemeanor, or civil action.

  4. The item being in the posession of the thief. Most laws require the owner of the item to prove that it was taken without their consent, that they can identify the object as being theirs, and that they did not abandon the item (thus creating a situation in which a reasonable person might think the property was free to whomever wanted to take it).
    • If you've made an illegal copy of an intellectual property and make it available for upload, you are quite obviously in possession of it. However, you might be excused if you legitimately thought the intellectual property was abandoned (for instance, because it was out of print) or in the public domain due to a lack of a copyright statement.

  5. Taking the item with the intent to sell it, gain a reward for its return, or to permanently deprive the owner of it. The "permanent deprivation" part is a little complicated. Courts have ruled that cases like taking a car temporarily for joyriding constitute larceny. Why? The item has been taken recklessly without permission, and the owner stands a strong chance of suffering some kind of financial loss due to the item being damaged while in the thief's control. So, even if the thief always intended to return the item, the risk of permanent loss to the owner makes it larceny.

    In other words, larceny (theft) either permanently deprives or has a strong risk of permanently depriving the rightful owner of money.

As I mentioned previously, some U.S. state laws explicitly define theft. For instance, the Ohio Revised Code defines theft thusly:

2913.02. Theft.

(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:

(1) Without the consent of the owner or person authorized to give consent;

(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;

(3) By deception;

(4) By threat;

(5) By intimidation.

(B) (1) Whoever violates this section is guilty of theft.

Ohio law further classes the following larcenous crimes as being forms of theft, several of which apply to file sharing:

  • 2913.03. Unauthorized use of a vehicle.
  • 2913.04. Unauthorized use of property; computer, cable, or telecommunication property or service.
  • 2913.041. Possession or sale of unauthorized cable television device.
  • 2913.06. Unlawful use of telecommunications device.
  • 2913.07. Motion picture piracy.

But wait! My filesharing isn't depriving the owner of anything! They can still do what they want with it!

Or, as a pro-filesharing user wrote in an online journal: "Steal an idea, they still have their idea, but now you have it too."

Not so fast, pilgrim.

First of all, we're not talking about ideas -- ideas can't be copyrighted. Art and stories and songs contain ideas, convey ideas, but they are not in and of themselves ideas.

Arguing that it's okay to trade a song because it's just an idea is like saying it's okay to sell a human being because we're just nitrogen (hey, humans contain nitrogen, and they give off nitrogen, so they're nitrogen, right?).

Second, refer to the part in #5 above about the larcenous nature of taking a car for joyriding. Now, think about identity theft, a well-recognized but very new form of theft.

If someone commits identity theft against me, I still have my actual identity. My face and fingerprints are still on my person. My friends and employer still recognize me.

I still have my identity, and now somebody else has it too ... and they're racking up credit card bills in my name. It's going to cost me a lot of time and money (because, after all, time is money) to get it all stopped.

Even if the identity thief figures her actions are harmless because the credit card companies will surely forgive my debt once they figure out I couldn't have made the purchases -- it's still theft because it's depriving me of money.

So, yeah, in the end it's all about money. And most writers, musicians, and artists stand to make money in royalties off sales of individual copies of their work, so every copy that gets downloaded off a filesharing server represents a potentially lost sale. Furthermore, a work's resale value may be diminished; publishers release work they expect to profit from, and if they see that the work is rampantly available via filesharing and people are getting it for free, they may question the profit in re-releasing the work.

The actual ramifications of lost sales from filesharing are hard to determine, of course. Some quantity of people who download a PDF or MP3 or EXE probably never would have purchased a legitimate copy of the property in a store; either they really were too damn broke, or they just weren't interested enough to buy but were curious enough to download. But many people fileshare because it's free and convenient, and presumably they do represent lost royalties to the creator.

However, just because the financial loss from a theft is miniscule doesn't mean it's not a theft. If I pocket a 5-cent piece of bubblegum in a candy store, the store owner may never even realize the gum is gone. But I still stole it, and I can't argue otherwise. Even though my theft is trivial, I am still a thief.

Making unauthorized copies of a protected intellectual property such as a song, book, or game available on a filesharing server is arguably a form of theft theft because it conforms to the U.S. legal requirements of larceny. No breaking and entering or forcible boarding need be involved to become a thief.

(Congress could of course pass a law at any time explicitly excluding filesharing copyright violations from being considered larceny in any way, and in that case illegal filesharing might be a form of theft in a moral sense but not in a commonlaw sense. Laws are set in paper rather than stone and are constantly being renegotiated and changed. That's why the world has so many lawyers.)

The Morality of Filesharing (or, Legal, schmegal, filesharing isn't wrong, and you can't make me believe otherwise!)

We are all ultimately responsible for the ethical decisions we make. Hundreds of teeny-tiny little events that are technically crimes go on all the time, unnoticed amongst the great raw screaming chunks of misery that represent larger crimes like armed robbery, rape and murder.

Circumstances can make almost any crime an unfortunate necessity or even a moral good. If I have no money, and my child is starving, I will steal milk for her if I have to, because the needs of my child outweigh my need to be a law-abiding citizen and not harm the store owner.

If I must learn Filemaker Pro to get a job I desperately need and simply haven't the money for a legitimate copy, I will download it and feel bad later when I've got the job.

There's a moral allowance for genuine human need.

There's also a moral legitimacy for filesharing in the name of civil disobedience in some cases. Copyright laws are supposed to balance the public good of being able to freely access and obtain artistic and intellectual materials with the creator's right to control those materials. A strong argument can be made that current laws have gone well past protecting creators -- and in some instances completely fail to protect creators -- and instead offer an unreasonably long corporate monopoly on intellectual property.

For instance, current laws have created a situation in which many musicians end up signing all their rights over to a music company in exchange for releasing their work. The Sonny Bono Copyright Extension Act is widely seen as a move pandering to Disney and other corporations that violates the spirit of the original laws. And many feel that the Digital Millenium Copyright Act is bad lawmaking on several counts.

There are quite a lot of materials out there that, while technically copyrighted, have been functionally abandoned. The creators are dead or no longer have rights to their own work, the work is out of print, and the copyright is owned by a corporation that is indifferent to making the work available for sale at a reasonable price.

In such cases, file sharing functionally abandoned materials arguably does provide a benefit to the public and also is defendable under the 4th clause of the larceny rules above.

There's also a moral allowance for using filesharing to obtain digital copies of work you already purchased in a hardcopy or analog format. There's even a borderline slippery-slope argument with some ethical (but no legal) grounding that it's okay to download copies of cable channel TV shows if you subscribed to those channels when the episodes aired. In both those instances, you could have made copies of the materials for personal "backup" use (which is a legitimate thing to do) but the person who has helpfully uploaded the materials is still violating the law. It's an imperfect world.

But there isn't really any moral allowance for simply wanting to have something without paying for it.

Songs and art and books don't grow on trees ... although seeing them everywhere might lead you to believe that they do.

Most people see the glitz and glamorous lifestyles of the latest vapid pop sensation, or hear about the millions of dollars Stephen King just donated to a charity, and they blithely think that all artists, musicians, and writers make plenty of money and a little filesharing surely isn't going to hurt. Besides, hey, they're getting exposure to new people, and they should feel flattered that people think their stuff is worth stealing.

The reality is that most writers, artists, and musicians work hard and don't get a lot of money for what they do. The flattery of seeing one's work on a filesharing server rubs off very quickly if one doesn't have enough money to pay the electric bill that month.

The reality is that artists, writers, and musicians have to pay their bills just like everyone else. They need money to survive -- it's a rare landlord or utility company that will take books and CDs in trade.

Most people create art, music, or stories because they need to express themselves. And for most creators, the whole point of being able to make a living off their creative endeavors is to enable them to keep creating. If they have to take another job to make their bills, the time spent at their day job is time and energy that can't be put to creating new songs or stories or pictures.

Thus, if professional artists, writers, and musicians are unable to make enough money off their work to live on -- they will produce less and less creative work. If Stephen King hadn't been able to make a living with his writing, he'd have had to keep being a low-paid, overworked teacher. We'd have gotten Carrie, certainly, and probably The Shining and maybe even The Stand. But what about later, more sophisticated work like The Green Mile and The Girl Who Loved Tom Gordon? Those very well might not exist.

In the end, the deprivation caused by mass filesharing might really end up being manifested as less and less quality entertainment available to consumers.

If you think books and songs and movies are overpriced, visit your local library (they might even buy new items they don't carry you if you and your friends request the materials), or buy used copies. And remember, you and like-minded friends can always try making your own for each other.

Hey! What about libraries? How come they get to exist?

Public libraries are run on a combination of tax-derived funding and donations. Their mission is to make books (and to a lesser extent audio and video works) available to everyone in their community.

Every book you find in a library has been legitimately purchased or donated by someone else who bought the book. In short, every copy represents a sale and thus money to the copyright holder. The First Sale Doctrine makes it perfectly legal to lend out a legitimate physical copy of a book, movie, or CD. When a book circulates, it goes out to one person who borrows it for individual or family reading, keeps it for a few weeks, and returns it. The book keeps circulating on this kind of individual basis until it is too worn to lend; then it is replaced with another paid-for book or sold in a booksale fundraiser. A popular library book might be read by 25 people in a year.

Contrast this with illegal fileshared copies of the book. I have seen books posted on IRC that haven't yet gone to press -- in short, somebody with access to the publishing company uploaded an illegal copy. Thus, the shared file doesn't represent a sale at all. And in the case of a person uploading a copy of a legitimately-purchased electronic book, the First Sale Doctrine does not apply because the intellectual content has been duplicated without permission.

A popular prerelease book might be downloaded by 25 people in just a few hours. And once those hundreds of people have downloaded the PDF -- what incentive do they have to actually buy the book, even if they enjoyed it and would have otherwise bought it? Very little, unless they understand the hard work the writer and publisher put into making the book. The sheer numbers make permanent financial losses a very real possibility.

But, as Voltaire said, "No snowflake in an avalanche ever feels responsible."

Do as your conscience guides you. Just don't be confused or in denial about what you're doing.


  • A conversation with OSU law professor Sheldon W. Halpern
  • The Oxford Dictionary of Law
  • 'Lectric Law Library Lexicon entry at http://www.lectlaw.com/def2/t085.htm
  • Anderson's Online Revised Code at http://onlinedocs.andersonpublishing.com/
  • Theft Law: crimes Against Property & Hybrid Crimes by Thomas R. O'Connor at http://faculty.ncwc.edu/toconnor/293/293lect11.htm

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Wednesday, May 04, 2005

What can happen if you accidentally plagiarize

Most of us first encounter the notion of plagiarism while we're in school. Countless schoolkids unwittingly become plagiarists when they write their first few research papers: they copy verbiage verbatim from an encyclopedia or Web article. Even elementary school teachers are quick to tell kids that's a no-no if they realize their students have done it. Often, though, the students are instructed to "put the material in their own words", and they dutifully do some rewording. The student (and, often, his or her teacher) thinks this is fine, when really even a reworded passage still technically counts as plagiarism in academia if it's not cited properly.

Teachers (usually) crack down on plagiarism harder in high school, and most of us who had decent English instructors got citation and footnoting pounded into our heads. In my high school, unwitting plagiarism would get you marked down, but being caught willfully copying a paper would get you a zero for the whole project, potentially causing you to fail the entire class.

The stakes get higher in college; many professors have a zero-tolerance policy, and if they catch you plagiarizing a paper, they will flunk you without a second thought.

But you can always re-take a class. It's expensive, and being flunked is embarrassing, but you can chalk the whole thing up as a learning experience and move on.

Once you leave school and enter a profession in which your livelihood is tied to your publications, a plagiarism charge is a deadly serious prospect. If you are a reporter, novelist, scientist, or academic, being outed as a plagiarist can simultaneously wreck your professional reputation and put you at risk of an expensive lawsuit. In short, it can break you.

The trouble is, it's actually pretty easy for a working writer to unintentionally commit plagiarism. I've known of two good authors who unwittingly committed plagiarism. I've changed their names, even though one involved a public court case:

Case #1: John Doe and the Plagiarized Novel

John Doe is an up-and-coming writer, not a big name, but he's made some story sales and sold a first novel. His younger brother Sam is really excited about John's publishing success, and Sam says he had a great idea for a book. John agrees to write his next novel based on his brother's ideas. Trouble is, Sam had gotten all his ideas from an older, not-well-known horror novel written by a very prolific well-known writer we'll call Mr. Big. John doesn't know this.

So, Sam outlines the plot and characters -- taken almost verbatim from Mr. Big's book -- and gives his notes to John, not realizing that what he's doing is wrong and dangerous. John thinks his brother's ideas are awesome, and starts writing the novel. The novel is in John's style and his own words, but the characters and plot are almost identical to the other book. Sections of dialog, courtesy of Sam, are identical. When it's finished, he gives it to his agent (who hasn't read Mr. Big's book) who thinks it's great. The agent sells it to a publisher who also hasn't read Mr. Big's book.

When the novel comes out the next year, other people read it who have read Mr. Big's book. Someone sends Mr. Big a copy of the novel -- and he's furious he's been ripped off by some punk upstart.

John, still not realizing what his brother's done, insists he's innocent. Mr. Big takes the case to court. John is found guilty of plagiarism and is ordered to pay Mr. Big a fairly large settlement. John suffers a great deal of public embarassment, loss of professional reputation just as he is actually starting to have one, and has to pay Mr. Big the equivalent of a small house mortgage for many years. He suffers tremendously because his brother was copyright-stupid and John didn't think to ask where his great ideas were coming from (and also because neither he, his agent, nor the publisher were well-read enough to catch the novel's problems, but that's another issue).

Case #2: Sally Smith and the Plagiarized Story

Sally is a published story author and academic. Like many writers, she keeps a notebook of ideas she jots things in as they come to her. She also jots down particularly cool, quotable passages she finds in the many books she reads. She is always careful to note where she found the passages -- except once, she slipped up. She wrote down a paragraph from another writer's short story, but got distracted before she cited it.

Ten years later, Sally's published a metric ton of her own fiction in books and story collections. She's asked to write a story for an upcoming anthology, and so she starts thumbing through her old notebook for an idea. She spies a nifty paragraph -- the one from the other writer's story -- and inspiration strikes.

She sits down and writes a story that flows effortlessly from her fingers; it feels familiar to her, but by now she's written hundreds of stories and she dismisses the feeling. The finished story is very similar to the other writer's story. Not identical, not even similar enough for many people to call foul over ... but she's got that one paragraph in there, and it's word-for-word the same.

Her story's published in an anthology, and then she sells it as a reprint to another anthology. Nobody notices anything's amiss. Then, one day, one of her readers sends her an email: "I really enjoyed your new story, but wasn't it a lot like Richard Roe's story in New York Tales?"

Her memory pings. She digs out her old issues of New York Tales and finds Roe's tale. Sick horror overwhelms her as she reads his story and realizes why writing her recent story felt so familiar to her -- she read it ten years before, and used it in her notebook!

She realizes that something like this could ruin her reputation, and on top of that she feels horrible for inadvertently ripping off another writer. So, she sends Roe an apologetic letter explaining what happened, and asks Roe what he wants her to do.

Roe's met Sally before, enjoys her work, and respects her as a writer. He accepts her explanation, and says that he'll be satisfied if Sally sends him the money she got for the story with the understanding she will never try to sell it again. And finally, he has her copyright the story under both their names. He doesn't take her to court, and the matter remains private among him, her, and their agents. Sally's cost is a few hundred dollars and some personal embarrassment. Her reputation remains intact, and everybody goes on with their lives and the incident is pretty much forgotten.

There's always a price to pay for committing plagiarism, even unintentionally. But by coming clean and being upfront and contrite about your mistakes, you can potentially avoid the worst. If you gamble that nobody will notice, you run the risk of having the charge taken to you by an angry author who won't be much inclined to believe your explanations (especially if you cop a bad attitude with him or her). If you try to cover up, you make yourself look guilty, and you're not likely to do well in court.

If somebody accuses you of plagiarism and you genuinely think the charges are unfounded, by all means, fight them -- but first, make sure they are unfounded. Don't cave to a crackpot who thinks that just because you also named your main character William Ballinger that you owe him a chunk of money. But if you know you screwed up, just 'fess up and try to do damage control.

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Tuesday, February 20, 2001

U.S. Court Rulings on Parody in Advertising

Ever since the case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, advertising has been the unpopular stepchild of the First Amendment. In that 1976 case, commercial speech, typified by ads that promote a product or service, was nudged under the umbrella of protection afforded by the First Amendment. But the Supreme Court did not give commercial speech full constitutional protection. As a result, advertisers can get soaked in trademark and copyright infringement cases.

Such cases get particularly muddy when parody is involved. Commercials based on parody, such as the Energizer Bunny ads, can be hugely successful. But the legal stakes are high. A parody, by its nature, has to remind the audience of the original; otherwise, the spoof falls flat. In the process of "conjuring up" the original to the audience, an advertisement can violate copyright and trademark laws.

And by their nature, parodies can carry a devastating sting. In 1987's L.L. Bean v. Drake Publishers, Judge Bownes wrote:

Since parody seeks to ridicule sacred verities and prevailing mores, it inevitably offends others, as evinced by the shock which Chaucer's Canterbury Tales and Voltaire's Candide provoked among their contemporaries.

Companies that make ads spoofing other companies' products and commercials are walking into a legal mine field. Consumers may love a good parody, but the companies whose products are the butt of the joke get mad. The angered companies then try to get even in court, suing for copyright and trademark infringement, injurious falsehood, trademark dilution, misappropriation, and even defamation. Even when the offending advertiser wins in court, the legal battle can cost huge sums of money.

So, legally speaking, what can advertising parodists get away with? Right now, there is no firm answer to this question; the legal status of an advertising parody is often in the eye of the beholding judge. A good way to understand the current legal thought in this area is to look at some of the more important advertising parody cases of the late 1980s and early 1990s.

The first case from this period is L.L. Bean v. Drake Publishers (1987). High Society, a pornographic magazine, published a two-page parody entitled "L.L. Beam's Back-To-School-Sex-Catalog" in its October, 1984 issue. The sexually graphic article, which was clearly labelled as being a fictitious parody, depicted a facsimile of L.L. Bean's trademark.

L.L. Bean sought a restraining order to take the offending issue out of circulation. Bean's suit accused Drake Publishers of a variety of trademark related violations, including trademark dilution. The district court ruled for Drake on many of Bean's complaints, but the court did grant Bean a summary judgment in regard to its claim of trademark dilution. The district court ruled that the crude and sexually offensive nature of the parody had "tarnished Bean's trademark by undermining the goodwill and reputation associated with the mark." The court then issued an injunction barring further publication of the parody to prevent additional damage to Bean's trademark.

Drake appealed on the grounds that the injunction violated its First Amendment rights. The appeals court ruled that the district court had dismissed Drake's First Amendment rights too easily. First, the court stated that the use of Bean's trademark in the parody was an editorial and artistic use, since the parodied trademark wasn't used to promote any goods or services. Second, the court stated that while the parody was vulgar and offensive, it was still entitled to First Amendment protection. Chief Judge Bownes wrote,

Trademark parodies, even when offensive, do convey a message. The message may be simply that the business and product images need not always be taken too seriously; a trademark parody reminds us that we are free to laugh at the images and associations linked with the mark.

In sharp contrast with this case is Mutual of Omaha v. Novak (1987). The Novak ruling came close on L.L. Beans's legal heels, but the Novak majority almost completely ignored the precedent.

In 1983, Franklyn Novak began selling T-shirts and other items emblazoned with a parody of the Mutual of Omaha "Indian Head" logo. Novak's parody depicted the head of a wasted human in an Indian war bonnet and had the phrases "Mutant of Omaha" and "Nuclear Holocaust Insurance" incorporated into the parody logo. Mutual of Omaha sued on the grounds that Novak had disparaged and infringed on its trademark. The district court rejected the disparagement claim but found for the insurance company on the trademark infringement claim and issued an injunction barring Novak from selling his parody merchandise.

Novak appealed the decision. In a majority decision, the court of appeals affirmed the lower court's ruling. The court ruled that Novak's parody would create confusion among consumers as to whether or not Mutual of Omaha was sponsoring Novak's merchandise and therefore violated both federal and state laws. The majority stated that although the parody had political content, Novak could have expressed his views in many other ways besides parodying the Mutual of Omaha logo. Thus, the court did not consider the injunction to be a violation of Novak's First Amendment rights. The majority ruling only mentioned L.L. Bean in a single footnote, stating that Novak did not violate Bean's precedent, since the Bean ruling was based on the "editorial or artistic" use of a trademark and the Novak case was based on the confusion issue.

Circuit Judge Heaney vigorously dissented with the majority:

The majority's holding sanctions a violation of Novak's first amendment rights. The T-shirts simply expressed a political message which irritated the officers of Mutual, who decided to swat this pesky fly buzzing around their backyard with a sledge hammer. ... We should not be party to this effort.

Heaney expressed serious doubts that anyone would confuse Novak's "Mutant of Omaha" parody with the real Mutual of Omaha. Furthermore, the insurance company had not given any evidence to prove that the parody had hurt its sales or reputation in any way. Heaney stated that nobody could doubt that Novak was using the parody to point out the folly of nuclear war, and he pointed out that scholars have rejected the idea that parodists must use "adequate alternative means of communication." And finally, Heaney argued that a trademark is "a form of intangible property that itself conveys or symbolizes ideas." Therefore, an attempt to enjoin a trademark parody censors the content of the expression more than the manner of the expression and so violates the First Amendment.

In comparing L.L. Bean and Novak, it is worth noting that the rulings in the cases run counter to intuitive logic. An offensive, sexually-oriented parody that could conceivably "tarnish" a company's image was found to be protected, whereas a milder, fairly non-offensive parody was enjoined.

In 1988, Hustler Magazine v. Falwell reaffirmed part of the L.L. Bean decision and put offensive parody firmly under the protection of the First Amendment. In 1983, Hustler ran a parody of a liquor ad that featured a fictitious interview with preacher Jerry Falwell. In the parody interview, Falwell was portrayed as having had a "drunken, incestuous rendezvous with his mother in an outhouse." Falwell sued the magazine for libel and intentional infliction of emotional distress.

After several years of litigation, the case made it to the U.S. Supreme Court. The court noted that the main legal knot of the case was whether a public figure (such as Falwell) could recover damages for emotional harm caused by a parody that most people would consider to be gross and repugnant. The court concluded that, based on the history of the political cartoon, a parody or caricature of a public figure, even when it is deeply offensive, is protected under the First Amendment.

In the early 1990s, a pair of cases involving beer companies set forth new standards concerning parody in advertising.

The first case, Tin Pan Apple Inc. v. Miller Brewing Co. (1990) dealt with both copyright and trademark infringement issues. Miller Brewing ran a humorous TV ad that featured three black rappers and comedian Joe Piscopo. The rappers in the ad dressed and performed like the Fat Boys, a rap group that encouraged its underage audience to abstain from alcohol and other drugs. The Fat Boys sued, accusing Miller Brewing of copyright, trademark, and privacy violations.

The case went before the district court. In the matter of the copyright violation, the Fat Boys claimed that the ad had copied parts of their rap songs. Miller claimed that the ad was a parody, and as such constituted "a fair use which prevents a claim of copyright infringement." The court agreed that parody usually qualifies as a fair use, but it also stated that using copyrighted material for solely commercial purposes was illegal. Judge Haight wrote:

This commercial's use is entirely for profit: to sell beer. Even if the concept of parody is impermissibly stretched to include this commercial, it does not qualify as fair use . . . the commercial in no manner "builds upon the original," nor does it contain elements "contributing something new for humorous effect or commentary."

The court then turned to the issue of the alleged trademark infringement. The Fat Boys had stated in their complaint that their group name had been registered as a trademark. The Fat Boys and Tin Pan Apple had entered into licensing arrangements with merchandise companies to use the group's name and image in making clothing and toys. In essence, the group had the trademark status of a company.

The Fat Boys argued that the beer commercial misled consumers into believing that they endorsed Miller's beer and encouraged drinking. Miller Brewing again used parody as a defense. And, again, the court used the logic it had used with the copyright infringement issue to decide that Miller had violated the Fat Boys' trademark.

While Tin Pan Apple was an important ruling, the most important case of the period was Eveready v. Adolph Coors Co. (1991). This case provides an new perspective on several advertising parody issues, since it pits advertiser against advertiser, parodist against parodist.

Eveready is well known for its ad-within-an-ad "Energizer Bunny" TV commercials. But some people may have forgotten that these ads began as a parody of Duracell TV ads. The original Duracell battery ads displayed a room full of toy rabbits playing snare drums. As a voice-over talked about Duracell's batteries outlasting those of its competitors', all the rabbits but the one run by Duracell batteries stop playing.

In the first Eveready spoof, the ad displays a similar group of toy rabbits playing snare drums. A voice-over says, "Don't be fooled by commercials where one battery company's toy outlasts the others." At that, one of the rabbits turns its head, and its eyes widen as the Energizer Bunny strolls out in front of the other toys, beating its bass drum. At the end of the ad, the voice states Eveready's now-familiar pitch, "Nothing outlasts the Energizer. They keep going and going and going .... voice-over fades out as ad ends" The Energizer Bunny pauses in the middle of the screen, leans back, and exits the screen during the fade-out.

This ad started a very successful ad campaign for Eveready. The series of ads involved the Bunny intruding on fake commercials for fictitious products such as "Sitagin" (a hemorrhoid ointment that spoofs "Preparation H") and a wine called "Chateau Marmoset." The Bunny also became more boisterous, typically knocking over props, and spinning around once and twirling his drum mallets before exiting the screen.

In late 1990, Coors Light's marketing department decided to give Eveready a taste of its own parodic medicine. Coors' advertising agents had been told to design a set of ads involving Leslie Nielsen, a popular actor who has starred in slapstick movie parodies such as Airplane! and The Naked Gun. The agents designed an ad in which Nielsen would parody the Energizer Bunny. Coors accepted the design, produced the ad, and scheduled it to air in the six weeks immediately before Nielsen's new movie, Naked Gun 2 1/2, was released.

The parody commercial starts with a visual of a beer pouring into a glass with a voice-over accompanied by classical music. The voice and music grind to a halt and Nielsen walks onto the scene, beating a bass drum and wearing white rabbit ears, a fuzzy tail, and pink rabbit feet with a dark business suit. The Coors Light logo is emblazoned on the drum head. After a few beats on the drum, Nielsen spins around several times. And after recovering from an apparent dizzy spell, he says "thank you" and leaves the screen.

Eveready caught wind of the ad before it was sent to the networks and wrote letters to Coors demanding that the commercial not be aired. The two companies met and were unable to resolve their dispute, so Eveready filed suit in an attempt to keep the commercial off the air. The complaint argued that the Coors commercial violated Eveready's copyrights and diluted and infringed on its trademark.

The district court stated that it was obvious that Coors had "copied" something from the Energizer commercials, but pointed out that Eveready had to prove "substantial similarity" between the two ads to win its copyright infringement claim. The court then examined the nature of the Coors commercial. The court cited Tin Pan Alley's precedent that appropriating copyrighted material for a solely commercial use could not constitute protected parody.

The court then refused to follow this precedent on the grounds that although TV ads are designed to sell a product, this does not mean that they are "devoid of any artistic merit or entertainment value." Furthermore, the court pointed out that since the original copyrighted material and the parody were both advertisements, Eveready couldn't argue that its creation deserved especially strong protection. And finally, the court ruled that the Coors ad only used as much of the Energizer commercial as was necessary to make a decent parody of it. District Judge Norgle wrote,

Mr. Nielsen is not a toy (mechanical or otherwise), does not run on batteries, is not fifteen inches tall, is not predominantly pink, . . . . He by no means copies the majority of the Energizer Bunny's "look."

The court consequently ruled that Eveready had not established that Coors had violated its copyright, and then turned to the trademark infringement issue. The court stated that Eveready had to prove that Coors' ad would create confusion among viewers as to which company sponsored the ad. The court pointed out that Eveready's strength in this issue was also its weakness: Eveready had a strong trademark in the Energizer Bunny, so strong in fact that viewers would be unlikely to think the Coors ad was anything but a parody. And, given the commercial power of that trademark, the court did not see how the Coors ad could dilute or erode the mark's strength or distinctiveness.

Given the Energizer ruling, it would seem that advertising parodies would get slightly more First Amendment respect in the courts. But Vanna White v. Samsung Electronics America Inc. (1992) proves that things are not as they seem.

Samsung ran a series of humorous magazine ads set in the near future. These ads poked fun at current pop culture while implying that Samsung's VCRs would be around in the next century.

Samsung's problematic ad was a spoof of the "Wheel of Fortune" game show. The ad portrayed a robot that had been dressed and posed to resemble Vanna White, the show's hostess. White had not been consulted about the ad. She felt that her image had been unfairly used, so she sued Samsung on the grounds that the ad gave a false impression that she endorsed Samsung's VCRs and that the company had unlawfully appropriated her likeness and had violated her common law right to publicity.

One of the defenses that Samsung used was that its "Vanna White" ad was a parody, and as such was expression protected by the First Amendment. The majority of the court agreed that the ad was intended as a spoof, but it felt that the ad might mislead consumers into thinking that White endorsed Samsung's VCRs. Because of this, the fact that the ad was a parody was no defense. "The difference between a 'parody' and a 'knock-off' is the difference between fun and profit," wrote Judge Goodwin.

Judge Alarcon disagreed with this view, however. In his dissent, he stated:

The majority gives Samsung's First Amendment defense short shrift.... The majority's attempt to distinguish this case from Hustler Magazine v. Falwell ... and L.L. Bean v. Drake Publications is unpersuasive. The majority notes that the parodies in those cases were made for the purpose of poking fun ... But they fail to consider that the defendants in those cases were making fun ... for the purely commercial purpose of selling soft core pornographic magazines.

Alarcon also stated that "no reasonable consumer could confuse the robot with Vanna White or believe that ... she endorsed Samsung's product."

In First Amendment protection terms, the White ruling seems to be a throwback to Novak. White shows that advertising parody's status in the courts is still at least partially at the mercy of individual judges' legal interpretations (not unlike many other areas of current communications law). Will advertising parodies ever be given more First Amendment protection? Only future cases will tell.


Eveready Battery Co. v. Adolph Coors Co., 765 F.Supp. 440 (1991).

Hustler Magazine Inc. v. Falwell, 14 Med. L. Rep. (BNA) 2281 (1988).

Langvardt, Arlen W., "Protected Marks and Protected Speech: Establishing the First Amendment Boundaries in Trademark Parody Cases," The Trademark Reporter 82 (September-October 1992): 671-764.

L.L. Bean Inc. v. Drake Publishers Inc., 13 Med. L. Rep. (BNA) 2009 (1987).

Mutual of Omaha Insurance Co. v. Novak, 836 F.2d 397 (1987).

Rodin, Rita A., "Parody Protection Under The Fair Use Doctrine-- The Eveready Standard: It Keeps Going, And Going, And Going..." St. John's Law Review 66 (Fall-Winter 1993): 1169- 1192.

Tin Pan Apple Inc. v. Miller Brewing Co. Inc., 17 Med. L. Rep. (BNA) 2273 (1990).

Vanna White v. Samsung Electronics America Inc., 20 Med. L. Rep. (BNA) 1457 (1992).

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I'm Lucy Snyder. I'm a Worthington, Ohio author and former magazine editor; on this site you'll find my writing as well as features from my husband, novelist Gary A. Braunbeck.

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