Jay From Cleveland posted an interesting comment and question on the topic of parodies.  Veggie Tales products are known and loved by many children and adults, in large part because of their sterling use of parody and humor with a Christian worldview.

I do not know whether or not Big Idea (the company which owns the Veggie Tales mark) licenses the rights to use certain characters or concepts in its parodies.  If so, they are per se legal because license (permission) provides a complete defense to infringement.  Even without a license, U.S. courts tend to accept a fairly wide range of works within the parody defense, especially following the the U.S. Supreme Court decision in Campbell v. Acuff-Rose Music, Inc (frequently called the "Pretty Woman" case because it involved a parody of the Roy Orbison song of the same name). 

The "batmanesque" LarryBoy provides a good example of parody.  Whether or not it qualifies for a full parody defense is a complex question not easily answered without more careful legal review than this blog permits, but we can use this character to examine another concept which forms a part of the fair use analysis:  the concept of "general characters or themes" which cannot be protected by copyright and therefore cannot give rise to infringement liability.

Copyright protection is not available for "general" character types or elements or for characters or character traits which have entered the public domain (meaning they are no longer protected by copyright).  For example, U.S. copyright law does not protect the undefined concept of "a super hero with special abilities" - otherwise known, at least here, as "Genericman."

Unlike Genericman, copyright protection is available for characters which have become so specific and well-defined that the public recognizes and knows them.  Copyright protection grows stronger as the author's conception and definition of the character increases in specificity and strength, with highly visible, well-defined characters receiving the most protection. Copyright law does not help "Genericman" but does protect "Bruce Wayne, wealthy bachelor whose parents were killed before his eyes, who had an unusual experience with bats, who assumed the identity of a bat-like superhero and who has spent his life avenging the deaths of his parents by driving evil from Gotham City" (to greatly summarize the Batman concept).

The range of superheroes between "Genericman" and "Batman" may or may not qualify for independent protection and may or may not infringe on the rights of an existing copyright holder depending upon the extent of the similarities and the extent, purpose and intent of the parody.

The description of LarryBoy placed on the Big Idea website demonstrates that LarryBoy is more than a straight "Batman" parody.  Larry the cucumber has been a popular (and highly defined) character within the Veggie Tales franchise for some time.  The fact that consumers recognize Larry and the Veggie Tales mark independently from "LarryBoy" make "LarryBoy" seem much less like an attempt to copy "Batman" than it might be if LarryBoy represented a first offering from Big Idea Studios. 

Larry is also known for taking on various identities in different situations.  Although each such parody would be interpreted individually with regard to the likelihood of infringement, this also weighs in favor of "LarryBoy" as an independent superhero rather than a "Batman" knockoff.

Moreover, LarryBoy has a job - he works for a local newspaper (A trait he shares with both Superman and Spider Man, but not with Batman. For those tracking similarities, Larry's job is that of janitor - another humorous twist).  Batman is independently wealthy.

These differences aside, a court would ask, as an initial question, whether the copyrightable similarities to "Batman" amount to an impermissible copying.  Similar non-copyrightable characteristics cannot lead to a finding of infringement. 

Non-copyrightable similarities (which do not count toward infringement because neither party can claim exclusive rights to a non-copyrightable attribute) would include elements common to superheroes generally (common to the "idea" of a superhero) or to superheroes of a certain type.  For example:

The fact that both "LarryBoy" and "Batman" are crime-fighters.  This is what superheroes do.

The fact that "LarryBoy" and "Batman" are both secret identities.  Superheroes have a long history of secret identities, which they protect for various reasons.

The fact that "LarryBoy" and "Batman" both wear costumes.  So do most other superheroes, and although the type of costume worn can set the hero apart, the fact that he wears one is closer to a "Genericman" attribute than a description of any individual superhero.

Both superheroes also wear masks.  A mask is almost a requirement for a 'secret-identity superhero' - because otherwise people recognize him.  The type of mask he wears may set him apart, but the fact that he wears one is a common, non-copyrightable element.

Copyrightable elements include the ones that set the character apart from others of his type, for example the features of a costume, the personal history or quirks of the hero and the specific "hero tools" he uses.

LarryBoy does not incorporate many of the fundamental copyrightable elements of "Batman," such as the traumatic death of Bruce Wayne's parents, the violent nature of Batman's crime-fighting (Batman is also commonly known as the "dark knight" in large part due to violence associated with the franchise) or the distinctive "bat-style" costume Bruce Wayne wears in his "Batman" identity.

Conversely, "Batman" is not known for teaching Biblical principles or for wearing a striking purple and yellow costume with what appear to be funnels stuck to the sides of his head - both major identifying features of LarryBoy.

The largest initial similarities between "Batman" and "LarryBoy" fall within the more generic elements of character development:  superhero status, special abilities, crime-fighting tendencies and the fact that both wear costumes.  This means that the success or failure of LarryBoy in an infringement sense depends more upon how Big Idea actually tells LarryBoy stories than on the character itself.

This entry should not be taken as a full legal evaluation or conclusion as to the nature of the LarryBoy character, but as a description of the difference between non-protectable general character elements and the more specific elements which are likely to lead to copyright protection and possibly infringement liability.

Defenses to Copyright Infringement, Part III

Parody, a creative work which mimics or makes fun of another subject or creative work, provides another defense to copyright infringement.  Often classified as a form of Fair Use, and therefore subject to a form of the fair use test, parodies create unique legal issues not found in other forms of copyright defense.

A parody makes fun of an original subject or creative work primarily by means of imitation or distortion.  The law recognizes humor as a form of criticism (and therefore potentially within the Fair Use Doctrine), even when entertainment is the sole objective of the parody.

Parodies seldom use the original work in its entirety.  More frequently, parody finds comic effect in significant (and sometimes offensive) distortion of the original work.  This creates two potential infringement issues: direct infringement of the right to copy and violation of the copyright holder’s moral rights to protect the original work against mutilation and distortion.

Courts evaluate potential parody defenses using a modified form of the fair use test (as previously discussed in Life’s Not Fair – But Certain Uses Are: Defenses to copyright infringement, Part II).  “Parody” is generally a favored “type and character of use” although courts are less likely to protect parodies created for economic gain.     

Unlike other forms of fair use, parody cannot succeed unless the listener or viewer can identify and recognize both the original work and the humorous nature of the parody.  Courts have modified the standard fair use test to require special proof of these critical elements.  A court evaluating the “type and character” of a use will require the creator of the parody to prove that people recognize the original work within the parody.  More importantly, the creator must prove that the comical nature of the parody is “reasonably evident” to a person seeing or hearing the work.  This does not mean that viewers must find the parody funny.  On the contrary, the law has carefully and purposefully abstained from evaluating whether or not a parody “succeeds” as a humorous work.

Parody, like other forms of fair use, can prove difficult to evaluate even for skilled legal professionals.  Some parodies successfully incorporate almost all of the original works they satirize, while others use only miniscule portions of the original.  As a general rule, a parody should use only as much of the original as the intended audience will require to recognize the parody as a play on the original work.

©  Susan Spann, 2005

(Defenses to copyright infringement, Part II)

Sometimes people want to use portions of copyrighted works for purposes other than complete reproduction and distribution of the work for enjoyment or profit.  Examples include book reviews (which may quote portions of the book), school reports (which may include facts or excerpts from books and other sources) and research (which may use or build on the work of other scholars and researchers). 

Copyright law exists to “promote the Progress of Science and the useful Arts” (U.S. Constitution, Article I, §8, clause 8).  Without a mechanism to permit people other than the copyright holder to make permitted use of copyrighted works, the law would become more a method for the protection of rights and less a tool for the promotion and advancement of useful works as a whole.

Legal Defenses provide a mechanism for the use of copyrighted works by people other than the copyright holder.  Part I of this series discusses many of these defenses.  Part II will focus on the Fair Use Doctrine, and Part III will examine use of works in the Public Domain.

The Fair Use Doctrine provides the largest and most complex defense to copyright infringement.  Many people exercise their rights to fair use of copyrighted material without understanding or even knowing about the doctrine that provides legal permission for their actions.

The Fair Use Doctrine grants people other than the copyright holder a right to use or reproduce portions of copyrighted material without legal liability for a variety of purposes including “criticism, comment, news reporting, teaching, scholarship and research” (17 USC 107, describing the “fair use” of copyrighted works).  This list is illustrative, meaning that other uses may (or may not) also qualify as legally permissible fair uses of copyrighted works.

Use which falls within “fair use” does not qualify as infringement and does not create legal liability for the user.

Fair Use is a facts and circumstances test, which means that the law does not establish an absolute test, but rather evaluates each use of copyrighted material independently to see whether the use constitutes protected Fair Use or unprotected infringement.  Users should evaluate intended uses of copyrighted works to see whether the use seems likely to qualify as Fair Use and should seek legal counsel before engaging in questionable uses.

Questions to ask when attempting to evaluate a potential “Fair Use” include:

1.  Is the original work protected by a valid copyright?

            Remember, copyright protection is a prerequisite to infringement liability.

2.  What impact will the proposed use have on the market for the original work?

            This is the most important factor in determining whether or not a use qualifies as fair use or infringement.  Uses which reduce or negatively impact the market for the original work cannot qualify for fair use.  An exception to this occurs when the use criticizes the original work in a manner which reduces consumers’ interest in acquiring the original work.

            For example: A textbook which quotes large sections from another textbook, enabling purchasers to use the new book in place of the original has probably engaged in infringement.  An article which quotes from a textbook as part of a negative review which causes consumers to cease purchasing the textbook has probably engaged in fair use.  The negative review, if inaccurate or libelous, may create different kinds of legal liability for the writer and publisher, but those forms of liability do not arise under copyright law.

3.  What is the purpose and character of the intended use?

            Commercial uses of copyrighted works, meaning attempts to profit directly or indirectly from the use and reproduction of copyrighted works, seldom constitute “fair use.”  Copyright law generally permits the copyright holder to control and profit from commercial use of the copyrighted work.  If financial gain (or preventing the “need” to purchase the copyrighted work from the copyright holder) is the primary purpose or likely result of the use, the user should seek the advice of experienced legal counsel before using copyrighted material

            For example:  copying all or large portions of copyrighted material for use in a school classroom, in order to prevent having to purchase individual copies for student use, probably constitutes infringement rather than fair use.  Copying the first chapter of a textbook for students to use on a temporary basis while copies of the textbook (previously purchased by students or by the school) are shipped from the publisher is more likely to constitute fair use.

4.  How much of the copyrighted work will be used?  How substantial are the portions used when compared with the original? 

            The law does not establish how much of a copyrighted work may be used before the use ceases to qualify as “fair use” and becomes infringement.  However, courts often ask whether the fair use damages the market for the original work and whether the user has taken enough of the copyrighted work for the use to unfairly impact the copyright holder’s ability to control copying and distribution.  Fair use generally (a) supports or advances the new work or (b) quotes only as much of the original work as necessary to provide background information.

5.  Does the nature of the copyrighted work make this use seem like infringement?

            Sometimes known simply as “the nature of the copyrighted work,” this portion of the test essentially requires a user to evaluate whether use of the copyrighted work seems “in keeping” with proper use.  For example:     

6.  Has the user properly cited the original work and author?

            Quotations and paraphrased materials both require proper citation (reference to the original work and its author, presented in an appropriate and accepted form).  Failure to properly reference the original work may result in liability for both copyright infringement and Plagiarism (a separate criminal act involving improper appropriation and use of material written or created by someone else).  This blog will address proper citation and plagiarism after completing Part III of copyright defenses.

Christians should carefully evaluate uses of copyrighted material both to comply with the laws of man (and comply with Romans 13) and to comply with the LORD’s instructions to “treat others the same way you want them to treat you” (Luke 6.31) and “love your neighbor as yourself” (Leviticus 19.18, Matthew 22.39).

Christ instructed the Pharisees to “render unto Caesar the things that are Caesar’s, and to God the things that are God’s.”  (Mathew 22.21)  Copyright infringement violates this fundamental rule by attempting to wrongfully take something which does not belong to the user without giving proper tribute to the copyright holder.  Fair use, on the other hand, permits advancement of “the useful arts” while continuing to respect both the law of man and the higher law revealed in Scripture.

Infringement, the legal term for violating the rights of a copyright holder, is a form of theft.  Unlike other forms of theft, such as burglary and embezzlement, many people tolerate and even practice infringement despite an otherwise Christian worldview. 

Many people have recently learned about copyright infringement through the popular media.  The Napster and Grokster cases made infringement a household term and sparked debate on the subject of peer-to-peer (P2P) file sharing and other forms of “sharing” copyrighted materials.  Unfortunately, many media sources did a poor job explaining exactly what constitutes infringement as opposed to “fair use.”

The most common forms of infringement include improper copying, distribution, performance and display of copyrighted works.  “Copying” and “use” need not rise to the level of plagiarism or complete reproduction to qualify as infringement.

Infringement does not require criminal intent – accidental infringement (“I didn’t mean to”) provides no defense.  Knowing what constitutes infringement – and fair use – of copyrighted material provides the best defense and arms writers, artists and others with the ability to avoid copyright infringement.

By law, “infringement” includes:

- Copying (or paraphrasing without proper attribution) all of a copyrighted work.

            For example: copying a CD or downloading protected music belonging to someone else.

- Copying (or paraphrasing without proper attribution) a significant portion of a copyrighted work.

            For example: copying a chapter from a copyrighted History textbook in order to “share” someone else’s book or avoid purchasing additional copies.

- Reading or otherwise gaining access to a copyrighted work and subsequently “creating” an illegally similar work.

            For example: writing a story, for publication or otherwise, in which a young man named Lukas Moonrunner and his long-lost sister, Queen Leeka, fight the evil King of the Universe named Dark Raider…

Whether or not a specific action rises to the level of infringement depends upon the specific “facts and circumstances” of the situation, the actions of the people involved and whether or not one of several “legal defenses” apply.  The most common defense, “fair use,” permits even complete copying for certain specific purposes (such as “backup” or archival copies for personal use).

Questions to ask when attempting to evaluate your own actions and those of others include:

1.  Is the original work protected by a valid copyright?

            Remember, copyright infringement involves illegal copying or use of a copyrighted work.  No valid copyright means no infringement, although legal liability may still arise from improper use of another person’s work. 

2.  Am I literally copying or paraphrasing a significant portion the copyrighted work? 

            “A significant portion” can be as little as a paragraph.

            Copying and quoting differ.  Some forms of copying are protected as “fair use” but the decision to copy should never be made lightly.

3.  Did I help or encourage someone else to infringe a copyrighted work?

            Contributory infringement – helping or encouraging someone else to infringe a copyrighted work – also carries legal liability.  You cannot legally help or encourage another to commit an illegal act.

4.   Did the amount of work copied, paraphrased or used rise to the level of “improper appropriation”?

            Did the copier take enough of the original work for a court to decide he or she took something belonging to the copyright holder?  If the copied sections are recognizable (meaning a viewer or user would recognize them as part of the original work) the copier probably took too much.

5.  Do I have a defense?

            Not all copying constitutes infringement.  The “fair use doctrine” and other defenses permit uses of copyrighted material, particularly with proper citation and attribution to the original source.

© Susan Spann, 2005

God commands Christians to store up “treasures in heaven, where neither moth nor rust destroys, and where thieves do not break in or steal, for where your treasure is, there your heart will be also.”  (Matthew 6.20-21)  Christian writers must never forget the obligation to “seek first His kingdom and His righteousness,” but should remember that Matthew 6.33 continues, “and all these things will be added to you,” with “these things” referring to the provision of earthly needs.  Creative works produced to advance the kingdom of God can provide earthly returns without violating the will of God.  On the contrary, Deuteronomy 8.18 states that God gives us power to make wealth, in order to confirm His covenant and Proverbs 12.14 instructs that “a man will be satisfied with good by the fruit of his words, and the deeds of a man’s hands will return to him.”

While Christians, particularly Christian writers and artists, must remain vigilant against the temptation to become “spotted” by the world, the scripture supports Christians using copyright law to protect and benefit from their creative works.

Copyright law confers a set of specific rights on the copyright owner (also called the copyright holder).  The law says that these rights are conferred on the “copyright holder” rather than the “creator” because the creator of a copyrighted work may sell some or all of his or her rights to another person, who then becomes the legal owner of the purchased portion of the rights.  Writers and artists should understand the nature of their rights in order to better understand how to protect and benefit from their copyrighted works.

Statutory duration of copyright

A copyright lasts for a limited period of time.  Once the term of the copyright expires the work becomes part of the public domain and is generally available for public use (with proper citation and attribution).

The copyright term recognized by U.S. law differs depending upon the nature of the copyright holder.  If the copyright holder is an individual the copyright generally lasts for the life of the author plus seventy years.  This gives both the author and his or her heirs the opportunity to protect and benefit from the work.  Corporate copyrights (which may be held by a corporation or other business entity) last for a maximum of ninety-nine years.  Copyright terms begin on the date a work is created, as opposed to the date of publication, performance or presentation.

Legal defenses and Christian representation

The rights of copyright holders discussed below are subject to a number of legal defenses and are not absolute.  Copyright holders should generally consult an experienced attorney about intellectual property issues rather than attempting to enforce their own rights.  In some situations a Christian attorney specializing in copyright issues may be able to resolve potential infringement issues without resorting to the court system by using the principles outlined in Matthew 18.  Christian writers and artists seeking to utilize these methods should discuss this option with their attorneys before problems arise to ensure their attorneys are also committed to Biblical principles of business and dispute resolution. 

Rights conferred by copyright

Control over copying, distribution and sales. 

With limited exceptions, only the copyright holder may create, distribute or sell copies of the copyrighted work.  This includes control over copies which change the form of the original work.  For example, someone who copied blog content without the blogger’s permission and read it aloud on the radio or created a CD-ROM containing the blog entries would be violating the blogger’s rights to his or her original copyrighted material.  The copyright holder may even prevent copying, distribution and sales of material or substantial portions of a copyrighted work.  The “fair use doctrine,” discussed in next week’s blog entry, creates the major and often extensive exception to this right.

Control over copying does not include control over the independent creation of substantially similar works.  Two people may simultaneously create remarkably similar works despite each having no knowledge of the other’s work or existence.  In this situation each individual may copyright his or her own independently created work.  Neither author may prevent publication or use of the other’s creation.

Control over derivative works.

Derivative works are subsequently created works based on an original but produced in a different form or with altered content.  Sequels are derivative works.  Novels based on motion pictures and film scripts based on novels are also examples of familiar derivative works.  Essentially, anything which is based upon or uses content from a prior work is considered a derivative.

Derivative works are eligible for full copyright protection, but cannot be created without the permission (often in a specialized form called a license) from the person or people who hold the copyright on the original work. 

The law does not require permission for the creation and copyright of derivative works based upon works in the public domain.

Control over performance and display.

The copyright holder has the exclusive right to publicly perform or display copyrighted works.  Showings of works which move or contain movement, such as motion pictures, dances or readings of written works, are considered performances while showings of works which remain still, such as photographs, are considered displays.  “Public” means performance or display which is open to the public or which takes place in a place open to the public, even if the actual performance or display occurs in a back room or at an “invitation only” event to which admission is limited.

Moral rights.

Moral rights include the right of the copyright holder to have his or her name associated and published with the copyrighted work (in publishing, this is often called the right to a byline), to prevent the association or publication of his or her name with works the author did not create, and the limited right to prevent modification, distortion or mutilation of his or her copyrighted works. 

Although these rights often receive less public attention than others they take on greater concern for Christian authors and artists seeking to advance and glorify the kingdom of God in their work.

© 2005 Susan L. Spann

Questions about these or other copyright topics may be directed via e-mail or comment on this page.  I will attempt to answer questions with supplemental blog posts and entries posted at various times throughout the week

Believe it or not, you probably already have.

Original blog entries, like many other creative works, are generally protected by copyright from the moment of creation.  Under U.S. law copyright protection attaches automatically to all creative works which meet a few basic requirements.

What are these requirements?  To obtain copyright protection under the law of the United States, a work must be “copyrightable subject matter,” must possess the required level of “creativity” and “originality” and must be “fixed in a tangible medium of expression.”  Early copyright law required registration with the U.S. Copyright office and compliance with other specific formalities.  Modern law no longer requires compliance with these formalities in order to establish copyright protection, although compliance is still mandatory before the copyright holder can file a lawsuit to stop unlawful use (known as infringement) of a protected work. 

We will explore each of these areas in detail over time, but a brief summary will help to illustrate the basic meanings of the terms.

Copyrightable subject matter essentially means “creative works.”  U.S. Copyright law protects “original works of authorship,” including literary (written), pictorial, graphic, artistic, architectural, dramatic and musical works.  The scope of copyrightable subject matter extends even to movies, recorded performances and creative works based upon earlier works (also called derivative works).  Blogs are definitely included.

Copyrightable subject matter does not include individual words, slogans or phrases (frequently protected by trademark), inventions (the subject of patent law), historical facts or blank forms. 

Copyright law does not protect the “building blocks” of expression, such as character types (“a priest”), themes (“evil never prospers”), general ideas or concepts subject to the “merger” doctrine.

Copyrightable “creativity” and “originality” require a new creation, as opposed to “mere copying” of works already in existence.  Works independently created by the author which represent or contain more than a trivial variation on prior works satisfy the legal tests and qualify for protection. 

Blog content cut and pasted from other sources will not, in most cases, qualify for copyright protection.  Content cut and pasted without proper attribution may even infringe the legal rights of the owner or copyright holder of the original material and subject the copier to liability for copyright infringement.

Fixation in a tangible medium of expression requires the creator to produce his or her work in a manner which may be viewed, perceived, reproduced or communicated to others.  This communication may be achieved either with or without the use of a machine or device.  Writing a story on a piece of paper or typing it into a computer constitutes “fixation.”  Posting a Blog entry on the Internet or a comment on a message board constitutes “fixation.”  Technical rules aside, almost any act which enables the creator to save the work will qualify as fixation for purposes of copyright law.

Notice that copyright law does not require the formal publication or sale of creative works.  Why not?  The answer lies in the underlying purpose of copyright law.

The United States Constitution grants Congress the power “to promote the Progress of Science and the useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.  (U.S. Constitution, Article I, §8, clause 8)  The threshold for copyright protection is low and attaches automatically because copyright law exists to encourage creative activity.  Writers are more likely to write, and bloggers more likely to blog, if they have some measure of ownership and control over the fruits of their labor.

What rights does the creator acquire under copyright law?  What actions violate those rights?  What happens when copyright protection ends? 

Those answers and more in future installments.

© Susan Spann, 2005

Have you ever had an idea?

If so, you have intellectual property. 

Surprised?

Although we see the term “intellectual property” regularly, it seems very few people outside the legal and technical professions understand much about this area of law.  Popular myths include the beliefs that intellectual property “belongs only to intellectuals,” and “only matters to creative or technical professionals like artists, writers, performers and computer programmers.”     

The term “intellectual property” refers to intangible forms of property such as ideas, inventions and creative works.  Intellectual property law sets the standards for how, when and to what extent owners, sometimes referred to as creators or inventors, have the ability to protect and sell their ideas, inventions and works.

Intellectual Property rights in the United States are governed by Federal law, state law and treaties between the United States and foreign nations.

Different types of intellectual property are treated differently. 

Patent law generally governs discoveries and inventions.  For example, the inventor of a unique machine may be able to obtain a patent, which gives the individual creator a limited monopoly on the invention for a specific period of time.  Once the patent expires the invention enters the public domain, which means that the inventor’s monopoly no longer exists and anyone may create and use the invention without paying a license fee. 

Trademark law governs “words, slogans and phrases” used to identify a particular source of goods or services for sale in the marketplace.

Copyright governs “creative works” such as books, poems and yes, blog entries.  It also covers such diverse areas as artistic and photographic works, music and architecture.

A branch of intellectual property law even governs “trade secrets,” protecting the rights of an individual or a company to maintain a business edge obtained by certain types of proprietary information.

Romans 13 commands:

“Let every soul be subject unto the higher powers.  For there is no power but of God: the powers that be are ordained of God,” (Romans 13:1) “Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honor to whom honor.”

Knowledge is essential to fulfill this command.

Over the next few weeks, this blog will explore intellectual property from a Christian, legal perspective, with a focus on explaining what every Christian should know in order to properly respect and protect the gifts and blessings the LORD provides in the form of intangible property and related rights.

© Susan Spann, 2005