Is Copying The Idea For A Magazine Cover Infringement?
from the idea-vs.-expression dept
We’re always told by copyright system defenders that there’s an “idea/expression dichotomy” in copyright law that prevents copyright from really getting in the way of free speech. This is supposed to mean that it’s perfectly fine to copy the idea, so long as you don’t copy the fixed expression of that idea. In practice, this gets a lot trickier, with courts seeming to find all sorts of copied “ideas” infringing, even if they don’t copy specific expression. So where is the line?
The folks at Chicago Magazine are apparently quite upset and are calling in the lawyers after discovering that a magazine in a small Russian city, called Krasnodar, copied the idea for the cover of a recent issue of the local magazine. There’s no doubt that the idea was copied:
“This is a tempest in a teapot if I’ve ever seen one. All creative inspiration is derivative. Some more so than others.”
Chicago Magazine seems to think it’s a bit more serious, and claim that this is a violation of its copyright:
There is a difference between a work that is inspired by another and one that is copied. Copyright laws are written to enforce that difference, and our lawyers are sending Krasnodar magazine a stern note.
So, where is the line? As far as I can tell, the specific expression here is different. The idea is obviously copied, but the execution is different. Is it infringement? And, if so, where is that line between idea and expression?
Filed Under: chicago magazine, copyright, expression, idea, magazine covers
Comments on “Is Copying The Idea For A Magazine Cover Infringement?”
“where is that line between idea and expression?”
There is no line. The line is in intent, the line is in effort, the line is in ingenuity, the line is in the eye of the beholder, the line is undefinable, the line is a myth.
What is clear is that the Russian magazine isn’t at all original, they replicated the design down to the details, from the 0 being filled in to the wavy line thing on the top right. The colors are very similar, and there is even a heart in the 0.
It isn’t paying tribute. It isn’t a parody. It is just taking someone else’s idea and replicating it. The execution isn’t even significantly different, as it involves the same image placement, the same design elements, etc.
Hard to claim any originality in the Russian design.
It is actually pretty rare for courts “to find all sorts of copied “ideas” infringing, even if they don’t copy specific expression.”
Rather, it is common for courts to hold that the kinds of things you appear to view as “idea” to actually be “expression” under the law.
It is very hard to determine where the “line” is in any given case, but you seem to want to draw it in a much different spot than the courts do.
its true that the banner has a wave in it (as banners do) and is black. Beyond that nothing is the same, even the grey is a different shade. Its similar in feel maybe but everything is different.
Watch Out
Their lawyers are going to send a stern note. To someone in Russia. Seriously?
Also, I would not be surprised if Chicago Magazine had not “borrowed” ideas from other magazine covers.
Re:
Why is nobody pointing out that as magazines they are both clearly copying the French original “Gallant Mercury” originating in 1672.
If they were in competition with each other, then one might see why one would give a damn about the other but I would suggest that the crossover between those wishing to read Chicago and those wishing to read Krasnodar is minimal.
A pity the originators of Gallant Mercury are not in a position to send stern notes to both of them.
For everyone else the most burning issue is surely who gives a flying ….
Re:
Captain Obvious to the rescue!
Similarities:
* gray background
* red title
* use of brown-red-blue-white-black-gray palette
* wavy black line at the top
* large black numbers in the center
* sprinkling of logos over the cover
* use of snowflakes
Differences:
* language
* text/messages (they translate to something different)
* fonts
* logos
* size positioning of the red heart
* precise hues (the two gray are different, admit it! So are blues, etc)
Dear Reader,
I challenge you to find the cover Chicago magazine lifted the design off. I swear it’s not original either.
Re:
Mike doesn’t seem to understand that nonliteral copying can still be copying. Kind of strange that he runs an IP law blog yet doesn’t grasp the basics.
They’re going to argue that even if the individual elements of the design are uncopyrightable ideas, the particular selection and arrangement of those elements can constitute sufficiently original expression to be protected under copyright law. See the 1991 Feist case decided by the Supreme Court. Admittedly, those sorts of selection/arrangements usually have pretty “thin” copyright, only being actionable against wholesale appropriation, but they might just have a case here, given how closely the creative elements were followed.
Not that it makes it any less of a stupid case, though.
Re:
Mike asks “So where is the line?” and makes no judgement in the text as to which side of the line he feels this is on, even going to far as to put “idea” in quotes in a manner that suggests that it may or may not count as idea rather than expression expression.
Kind of strange that someone who clearly writes in english (american?) as their primary language doesn’t understand it. Oh, or were you just looking for another excuse to say something randomly nasty about Mike for no explicable reason?
Ha!
I was going to mark you funny, but then reread and found from the tone that you may have been serious. I think you invented a new term “non-literal copying”. So should they be sued for non-literal infringement? I mean, they weren’t literally infringing, just figuratively.
It all smacks of grade-school-type complaining. “Judge! Timmy copied my idea!”
The fact is, you could confuse the two if you quickly glanced at both. I call this blatant copyright infringement with quite a lame “Excuse/explication” out of the theft.
Re:
Adding:
Similarities:
– use of a heart inside the 0
– 0 filled in
– fonts
– placement of title relative to other design items
– placement and distribution of logos on the page
differences
blank.
The color hues may only be the difference in printing equipment or the scan. We don’t know that one for sure. Safe to say it’s red logo, silver background, black wavything, red heart, blue logos, etc.
Ha!
Non-literal infringement is a real term in copyright law. It means non-slavish, non-identical copying. I believe Nimmer on Copyright justifies it as necessary to keep copiers from evading liability through immaterial or minor changes. Or maybe that was Learned Hand. Or Nimmer quoting Learned. Typing this on my phone, so I can’t really check. At any rate, just letting you know it’s not a joke.
Re:
“and makes no judgement in the text as to which side of the line he feels this is on”
But you read the headline, right? Also, “As far as I can tell, the specific expression here is different”
Ha!
“I think you invented a new term “non-literal copying”.”
That term’s been around, and been recognized as potentially infringing, for a very long time.
I must be blind
How could anyone think they’re similar, the one on the left says 40 and the one on the right 30. Completely different 😉
“…our lawyers are sending Krasnodar magazine a stern note.”
Getting lawyers involved is an extraordinary waste of time and money that could instead be put towards actually making the magazine.
Since there is absolutely no negative effect on Chicago magazine, they could just be flattered that someone liked their cover so much, make a few cheeky comments about the unoriginal work and get on with their lives. Instead they come off looking like a bunch of whiney babies.
Re:
Now, maybe you shouldn’t go throwing around insults about reading comprehension.
Ha!
“Or Nimmer quoting Learned.”
bingo
Some people in this thread are either forgetting or don’t know the first question you have to ask in a copyright infringement case: what exactly is the copyrighted work at issue? Is it the whole cover? The graphics? The text? This is a critical question to answer, because people listing the similarities and differences between the covers may miss the point entirely. If it’s the layout of the design elements that’s being claimed as protected, that the text itself is different in the Russian version doesn’t matter, since nobody said that’s part of the infringement claim. Be mindful of these issues as you examine the veracity of a copyright claim.
Re:
So, like cake, the line is a lie?
Wasn't this done before?
I mean, isn’t this how the MIG 21 was built?
Re:
BUT – one of the requirements for infringement is damage to the market for the original. Given that the languages are different I would say that that is zero.
Ha!
The concept is that copying doesn’t have to be literal to be infringing.
As the 11th Circuit explains in Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821 (11th Cir.1982):
“Because it is rarely possible for an author to prove copying directly, courts have developed a two-part test that infringement plaintiffs can use to prove copying indirectly. This test requires the plaintiff to show that (1) the defendant had access to the work and (2) that the defendant’s work is substantially similar to the plaintiff’s. Miller v. Universal City Studios, 650 F.2d 1365, 1375 (5th Cir. 1981); Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 113 (5th Cir. 1978). Accord Kamar International v. Russ Berrie & Co., 657 F.2d 1059, 1062 (9th Cir. 1981); Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 911 (2d Cir. 1980). “Substantial similarity” exists where “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Durham Industries, supra (quoting Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092-93 (2d Cir. 1977).[11] Accord Kamar International, supra, 657 F.2d at 1063; Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975). Of course, proof of access and substantial similarity raises only a presumption of copying which may be rebutted by the defendant with evidence of independent creation. Miller, supra, 650 F.2d at 1375; Novelty Textile Mills, supra, 558 F.2d at 1092.”
http://scholar.google.com/scholar_case?case=7295940107796631912&hl=en&as_sdt=2,19&as_vis=1
For nonliteral copying in the context of computer programs, check out Computer Associates International, Inc. v. Altai, Inc., 982 F2d 693, 702 (2d Cir. 1992).
http://scholar.google.com/scholar_case?case=6976925648486076739&q=computer+associate+v.+altai&hl=en&as_sdt=2,19&as_vis=1
Re:
nonliteral copying can still be copying.
A concept that was nowhere to be found in the original copyright laws and has been invented by copyright extensionists and pushed into the legal system via case law.
Re:
It’s not about ‘similarities.’ Everything has similarities. (That’s pretty much how graphic design works.) Show me what they replicated.
Maybe the black wavy line (I’d have to see a higher resolution.) Everything else is different.
Ha!
It’s that a term used for software?
Ha!
Isn’t that a term, rather. 🙂
Re:
Yes, copyright laws develop over time via case law. I suppose you think that the law shouldn’t develop over time?
Re: Re:
Of course it should – but guided by elected representatives responding fairly to the views of all the people – not pushed forward on a ratchet by those with a vested interest.
Re:
Mike asks “So where is the line?” and makes no judgement in the text as to which side of the line he feels this is on, even going to far as to put “idea” in quotes in a manner that suggests that it may or may not count as idea rather than expression expression.
Kind of strange that someone who clearly writes in english (american?) as their primary language doesn’t understand it. Oh, or were you just looking for another excuse to say something randomly nasty about Mike for no explicable reason?
LOL! Total reading comprehension fail.
Chicago USA -- Krasnodar Russia
“…and our lawyers are sending Krasnodar magazine a stern note.”
Lawyers (Presumably in Chicago USA) sending Krasnodar Russia a Stern Note??? I’m sure the Russians will have quite a laugh.
I must be blind
But then again what goes after 30 is the same (just translated into Russian and applied to Krasnodar). 8^)
Chicago USA -- Krasnodar Russia
The owner of Krasnodar Magazine isn’t laughing at all. In fact, if you check out the comments section for the linked article Yury has taken personal responsibility for the mistake and apologized.
I agree that it is questionable whether this really qualifies as copyright infringement and it doesn’t warrant litigation. But from an artist and business perspective it is very bad behavior. I would not work with an artist that was willing to so blatantly copy a design and a publisher should be looked at with great scrutiny. However, as I mentioned Yury has apologized directly and publicly. I think the issue should be pretty much over following that.
Find out who created it and/or whoever was aware of the similarity. They should suffer the appropriate consequences within their trade.
Re:
“It’s not about ‘similarities.'”
Says who?
Ha!
It has been, but is not limited to the software arena.
Re:
The horror!
“The original copyright laws” probably didn’t even mention Xerox machines, or “computers” or “mp3s” either!
Re:
“one of the requirements for infringement is damage to the market for the original.”
This is not true. You might be thinking of a factor for consideration when asserting a fair use defense.
Ha!
So, this term refers only, that I can find, to software– but you have decreed that it applies to magazine covers too?
Interesting. 🙂
Ha!
Oh that is just rich.
Avatar is a copy of other works so they should be sued too.
That kind of reasoning is why IP laws everywhere will get those derivatives works out of the way, because truly they are a barrier to the goals of the state at issuing even more protections to even increasingly absurd things.
By those terms Hollywood and the labels are screwed, in patents things are a bit different since any little change is a change to the whole expression and appearances don’t matter that much.
This is IP law reaching the inevitable conclusion that for more protections to be gained standards will need to be lowered to allow for more things to be protected and that means that cover there might just well pass muster as an original work under soon to come new more expansive rules.
Watch Out
The only reason the Russian mag did this was because they figured they’d be out of the reach of US law.
If they were American they’d be sued out of existence.
Clear infringement.
What does it matter if a magazine in a town in Russia copies the cover of a magazine in Chicago? No one in Krasnodar will read the Chicago Magazine and no one in Chicago will read Krasnodar Magazine. Where is the harm? It’s ridiculous that Chicago Magazine even cares about that.
Ha!
I haven’t decreed anything w/r/t magazine covers.
literal v. non-literal copying is terminology usually used in connection with “literary works,” which includes but is not limited to software. The Almighty Wikipedia, peace be upon it, agrees: http://en.wikipedia.org/wiki/Nichols_v._Universal_Pictures_Corporation
However, the same idea does apply to other forms of works (i.e., copying selection/coordination/arrangement of elements might be infringing even if the elements themselves are not copyright protectable).
Wasn't this done before?
But you can’t compare what a government has failed (or succeeded?) at to what the mere mortal has… The government failing was an informed decision, while the mere mortal failure could be attributed to sheer stupidity.
Re:
I just did. And so did you, really, when you said (at the start of this thread) that they offending party was “replicating it.”
Show me the replication.
Re:
It’s not about ‘similarities.’ Everything has similarities. (That’s pretty much how graphic design works.) Show me what they replicated.
Maybe the black wavy line (I’d have to see a higher resolution.) Everything else is different.
It’s exactly about similarities. In fact, the prime element of whether or not this is infringement is whether or not it’s substantially similar.
Ha!
So, it’s “Stop dressing like me”.
Re:
The fact is, you could confuse the two if you quickly glanced at both.
Not even if you were in a hurry.
Ha!
What I find astonishing is that there is no measure no nothing in there, those things are basically decide by gut feelings.
That image doesn’t even show up on image search engines.
http://www.tineye.com/
And I am sure people could come up with ways to find similar images based on some criteria as shown by Microsoft Photosynth (a.k.a. Bundler, now open-sourced.
Re:
First, thank you for acknowledging that it takes a court to determine infringement (not mere copying), and that merely consulting a lawyer won’t decide infringement or not.
Second, you’ve pointed out a huge flaw in the system. That would be, reasonable people can differ about whats “idea” and what constitutes “expression”. Some artist who wants to stay free and clear of infringement, who holds the idea of Intellectual Property in high regard, as Most Holy, in fact, can mistake “idea” for “expression”, and run afoul of copyright law. This righteous artist, in his or her heart of hearts, believed that he or she was not infringing on the expression of an idea, but rather giving a fabulous new expression to a good idea. And then, blam! into the court system with him or her, and heaven help him or her if a judge decides that the line between “idea” and “expression” lies somewhere else.
After independent invention, that’s the biggest problem with copyrights, or indeed, any “Intellectual Property”. Different people have different ideas about ownership. “IP” is a morass, a swamp, where the unscrupulous or extremists have pushed society into a place where simple ideas are owned, and people aren’t allowed to use the fruits of their own creation.
Re:
It’s exactly about similarities. In fact, the prime element of whether or not this is infringement is whether or not it’s substantially similar.
I think another AC has already said that, you infringing bastard!
Re:
So if the 0 was not filled it would it be the same?
Re:
Right…. replication means EXACTLY THE SAME! Meaning that he would have had to use the same font, same colors, same exact EVERYTHING before it would be replication.
It’s time to realize that everything is derivative and things like this should NOT be copyrighted.
Measuring stick
Way back when Lotus was sing Paper Back software (or was it Borland?) for copyright over the 123 spreadsheet, I came up with a measuring stick : determine the effort required by the plaintiff to change their work into the supposed infringing work. If that effort is minimal then the work is copied else it is not.
Re:
Yes, I even got as far as reading the question mark at the end.
The “specific expression” is different as noted by another poster there are several material differnces. Whether these are enough to make it non-infringing is the question asked.
Re:
Jerked off enough for the day and felt the need to go online and be a douche for a change?
It all depends.
I fall by on my good old trusted logic:
IF am_I_going_to_lose_out_on_some_potential_money THEN YES
ELSIF is_it_going_to_cost_me_money THEN NO
ELSE someone_else_s_finical_woes
END IF;
Watch Out
/sarcasm ?
Because if it wasn’t … well I won’t tell you what that makes you because you wouldn’t be able to understand it.
Why would anyone even care? Some small town on the other side of the planet has a magazine cover that copied yours. Are less people going to buy Chicago magazine now? Why would you even pay a lawyer to write a letter? Just send me the money, I will get you the same results and my kids will get to ride go carts for a few hours. Win – Win.
Re:
It’s time to realize that everything is derivative and things like this should NOT be copyrighted.
I wouldn’t characterize this as a derivative work case, I’d classify it as an indirect copying case.
As was stated above: Substantial similarity exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.
When you look at the magazine covers, it’s quite clear that one was appropriated from the other. All you’d have to prove then is that the copier had access to the original. That’s infringement. Pretty vanilla stuff.
As far as Mike’s opining about where the line is between idea and expression–that’s a trick question. There is no definitive line. It’s decided on a case-by-case basis.
I know that’s not a very satisfying answer, but that’s the way it works.
Re:
So if the 0 was not filled it would it be the same?
It’s not a question of being the same, it’s a question of being substantially similar. The definition given above is: Substantial similarity exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.
When you look at the two magazine covers, do you recognize, as a lay person, that one cover was appropriated from the other? That’s the test.
I know Mike tries to make it sound like copyright is hard and no one can figure it out. Really, just a bit of common sense is all it takes. Do you think the one magazine copied the other? Sure as heck looks like it to me. Nothing hard about that at all.
Ha!
Maybe you haven’t heard, but according to Mike Masnick, 99% of creativity happens despite copyright. So copyright’s not causing any meaningful harm.
When you consider how much of the 1% that exists because of copyright includes Hollywood movies, popular television shows, billboard-topping music, and best-selling books, it doesn’t seem like a bad deal at all. Most of that 1% is freakin’ awesome.
Mike’s proved it. Copyright Rocks!
Re:
I’ll grant you that’s probably true, but I don’t think it’s quite so clear cut. I for example am a “lay observer” and looked at both having never seen either before and thought, “Hmmm those look a bit familar I wonder where I’ve seeen that kind of cover before?” Others in the thread have also suggested prior art on this. That being the case doesn’t that blur the line on what constitutes “copying” if Chicago had access to other covers of which it may have copied?
Which I think was the original question – and if there’s no line, and given that almost all art (and indeed any other creation) is derivative to a greater or lesser degree, how is someone creating something supposed to tell if what they are doing is “illegal” or not? That’s not just unsatisfying it’s a ridiculous way to run a railroad….
It puts to mind a case recently where scottish prosecutors decided to re-define what was considered “obscene” for the purposes of “obscene publication” prosecutions but refused to tell anybody what that definition was. How are you supposed to obey the law if no-one can/will tell you what the law is?
Ha!
I gotta say it’s really discouraging to see that non-literal copying is recognized in law. It completely goes against the concept that you can’t copyright an idea. Is it really that much of a problem that one work has the same ideas as another? That’s really the history of creativity, isn’t it?
Re:
Hang on a minute, you just said it was hard:
Make your mind up.
If “sameness” is based on gut feel of “ooo that looks kinda similar” then “law” comes down to how annoyed a judge and/or jury are feeling on any given day plus to what extent the people looking at the “sameness” are aware of the field in general and any prior art that may or may not exist. Explain how that’s “easy” or anything close to fair or reasonable?
Ha!
Really? Prove it. All of the content you mention was produced by Hollywood, major record labels, publishers etc. in the way it was because of copyright. You have no way of knowing how much of it would still have been created in the total absence of copyright by another means and still less how much would still have been created if copyright were for example substantially reduced in terms and hollywood had to accept a mere $10,000,000 pure profit on a project instead of hundreds of millions now.
Process is not end result.
as if they really care...
Gotta be kidding
Krasnodar magazine doesnt give a shit about merican lawyers
Good luck with that
Re:
I thought cakes had layers, not lines. You know: like an onion!
Re:
it’s worse than that. they took my goddamn cube.
Re:
The idea is that nonliteral copying can still be copying, otherwise, the copier could avoid liability by making minor, insignificant changes to the original.
When you look at the two magazine covers, do you think one copied the other? I think the answer is clearly yes.
I don’t think it’s really that hard to do since it requires only recognizing the obvious.
You could have less obvious cases, but in the magazines pictured above, I think the substantial similarity is clear.
Ha!
I gotta say it’s really discouraging to see that non-literal copying is recognized in law. It completely goes against the concept that you can’t copyright an idea. Is it really that much of a problem that one work has the same ideas as another? That’s really the history of creativity, isn’t it?
The reason nonliteral copying is recognized as copying is because it’s the expression being copied, not the idea. The magazine covers are a great example. It’s more than just the idea of having a big number in the middle with a bunch of stuff around it. The entire look and feel–the expression–is copied. It’s clear just by looking at them that one was copied from the other; they are most definitely substantially similar.
The alternative would be to have a system where only exact copying was considered infringement. All the would-be infringer would have to do is change one small, minor detail to escape liability. That would go against the concept of copyright protection.
Re:
let them eat the line.
Re:
I didn’t say anything about replication.
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Are you really suggesting that the line “is copying an idea infringement” does not suggest that what was copied *was* an idea, as opposed to expression? Why ask what the results of “copying ideas” is if no ideas have been copied?
As for your second point, please don’t move the goal posts. Whether or not the specific expression actually is or is not different is irrelevant to whether Mike suggested idea or expression was copied.
Re:
copying =/= infringement
There are a lot of other steps that must be analyzed to get from copying to infringement.
Ha!
I don’t think it’s as bad as you make it out to be. It depends on where you draw the line in any particular case (which is a hard thing to do).
If I write a screenply that rips off the plot, characters, etc. of Twilight as closely as possible, without literally copying any actual words from their screenplay, I think protectable expression is being copied.
Re: Ha!
Well I’ve never seen Twighlight thankfully, but let’s take an example I have seen. 24.
Personally I found the whole thing so drastically derivative of so many other things I’d seen that it was like watching it varying between 30 seconds and 5 minutes into the future – a slightly wierd experience I might add. It got to the point of “In about 5 seconds that guy’s phone will ring and he’ll go the other way and not find the person hiding… 5… 4… 3… 2… 1… *RING* yep there you go…”.
So the question is: Did 24 infringe copyright of all the other works I’ve seen that enabled me to do that? Or did they simply create a formulaic plot and characterisation based on standard ideas of story elements?
Re:
“Second, you’ve pointed out a huge flaw in the system. That would be, reasonable people can differ about whats “idea” and what constitutes “expression”.”
I agree. But this is a problem not confined to IP law. The problem with bright-line rules, while they make clear what is and is not allowed, is that their rigid application will often result in undesirable results, because it’s impossible (or at least very difficult) to conceive a rigid rule that will always get the right result when applied to future scenarios.
The other problem, of course, is that judges/juries with leeway to interpret something may get the right result more often, but only if the parties have several hundred thousand dollars to get to that point.
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copying =/= infringement
There are a lot of other steps that must be analyzed to get from copying to infringement.
No duh. But being substantially similar is the biggie here.
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The idea is that nonliteral copying can still be copying, otherwise, the copier could avoid liability by making minor, insignificant changes to the original.
OK, but even given that, there’s no literal copying going on there. (aside from that black wavy line, possibly.)
So now you’re just back into the six year old girl (or modern fashion industry, lately) despair of people dressing like her.
Re:
Well, I’m just saying that it can be hard to determine whether copying is infringement, even if copying is obvious.
Also, “substantially similar” is really a misnomer the way it is used by a lot of courts, but that’s probably a topic for another board (although, if you have access to Nimmer on Copyrights, he has a good discussion of this).
Re: Re:
if you have access to Nimmer on Copyrights, he has a good discussion of this
I’d like to check it out, thanks. Got a cite?
Re:
layout of the design elements
Where, in any copyright law, are you allowed to protect the layout of design elements? Complete graphics are covered but “variations of typographic ornamentation, lettering, or coloring” are explicitly not covered by copyright.
Copyright should over cover copies of things.
Re:
only cover.
Ha!
I think it’s exactly that bad. In the magazine cover, the only thing copied is the feel of it. Somehow, the publisher thinks it should be able to copyright a feeling.
If you write a screenplay that duplicates the Twilight movie without using the same character names or any of the dialog, then I would say there isn’t a problem. It then becomes a question of who did it better? What’s wrong with that?
Re:
I don’t remember where he talks about it, but he cites some law review article from the 80s by a Columbia professor.
Basically, it distinguishes between similarity used to show actual copying and similarity used to show infringement. This summary sort of gets to it as well:
http://itlaw.wikia.com/wiki/Substantial_similarity
Ha!
I guess we disagree as to what is problematic copying.
Re:
If it’s fair use, then it isn’t infringing. So a test for positive fair use could apply to a test for negative infringement.
Re:
A question mark (which you missed in copying, thus changing the meaning of the quoted sentence) is generally used to ask a question. The particular form of the question does, as you suggest, indicate a leaning but it is still a question. The piece overall I thought was quite careful to avoid coming down on 1 side. If you’re going to read a single sentence at a time, especially a headline, you’re really rather missing the bigger picture.
It was you brought it up, though perhaps I should have been a little more specific for you in what I said. I’ll try paraphrasing again.
The specific (i.e. unique) expression is different between the two covers thus the question is; Is this a case where the overall expression (i.e. non-unique expression) is sufficiently close as to be infringing, or is this a different expression based on a more generic style idea?
The secondary question is; Assuming that the expression is infringing, where in fact does the line lie between the 2 cases described if the bar is higher than this?
So no, not moving the goalposts, entirely the point.
Re:
I’m sorry, but I don’t believe putting a ? at the end of a sentence takes all suggestion of an assertion out of the sentence. If I write an article about Techdirt with a headline “Is constantly spouting off stuff you don’t know about and lying a good way to run a tech blog?”, it pretty clearly contains an implicit assertion, no? (BTW, I’m not saying that’s quite how I feel about Techdirt).
My only point (in this little thread) is that the statement that Mike “makes no judgement in the text as to which side of the line he feels this is on” is not at all true, and requires some willful blindness to portions of what he actually wrote.
That’s why I consider changing the discussion to whether something ultimately infringes or not is “moving the goalposts.”
Ha!
Well, that’s a different scenario and I’m not sure how close the copying is you’re talking about (and you’re not talking about a single work).
Comparing different types and levels of copying from different sources will, naturally, lead to different results.
Re:
Ok, but lack of damage to the market is not a “requirement” for a fair use result, therefore, damage to the market is not a “requirement” for an infringement result.
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selection/arrangement/coordination of elements may be protectible expression. See the Feist case.
As for “variations of tyopgraphic ornamentation, lettering, or coloring,” that CFR section is not referring to an overall layout or selection/coordination/arrangement of elements.
Moreover, I know of at least a couple cases reaching results that differ from that same section’s language re: “short phrases.”
Frankly, those CFR regs aren’t really that helpful in determining whether a particular work is or is not protectable.
Re:
I’m sorry, but I don’t believe putting a ? at the end of a sentence takes all suggestion of an assertion out of the sentence. If I write an article about Techdirt with a headline “Is constantly spouting off stuff you don’t know about and lying a good way to run a tech blog?”, it pretty clearly contains an implicit assertion, no? (BTW, I’m not saying that’s quite how I feel about Techdirt).
Absolutely correct. It’s obvious which side Mike is taking. Subtlety is lost on a lot of people, it seems.