Copyright Trademark Libel and you Christine Beck Left

Copyright, Trademark, Libel— and you! Christine Beck

Left Brain/Right Brain

Disclaimer • Any relationship between Christine Beck and a real attorney is purely coincidental and constitutes historical fiction. • This presentation is not legal advice but perhaps will give you some practical strategies to avoid needing legal advice.

Intellectual Property • Your creative writing is “intellectual property. ” Your legal rights and responsibilities are governed by: – Contracts (with journals, publishers) – Copyright Law – Trademark Law – The Law of Defamation (libel, slander, invasion of privacy, etc. )

I. What is Copyright? • The exclusive legal right, given to the originator to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do it. Copyright is a legal concept, embodied in a federal statute, giving the creator of an original work exclusive rights to it with the intention of enabling the creator of intellectual wealth to get compensated for their work.

How Long Does it Last? • For works created after January 1, 1978, copyrights last for 70 years after the death of the author. These rights can pass to heirs, and don’t expire at the writer’s death. • Note: Copyright violation is NOT the same as plagiarism. We will get to that later.

Copyright does not apply to works in the “Public Domain” • The works of others in the public domain generally includes material published before 1923 and unpublished poems whose authors died more than seventy years ago. • Shakespeare has no copyright!

How do I copyright my work? • Your poem is copyrighted automatically as soon as you write it, without any additional effort on your part. Publication is not a requirement in creating its copyright status nor is putting a copyright notice on your work necessary. If you’re concerned about formally establishing its content and its preparation date, mail or E-mail it to yourself. •

Should I file with the Copyright Office? • You will have to register if you wish to bring a lawsuit for infringement of a U. S. work. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie [no need for any other proof] evidence in a court of law.

If my poem is published, have I given away my copyright to the journal? • This depends on the terms of your contract with the journal. Frequently, copyright remains with the journal for print and online printing and reprinting, but otherwise reverts to the author (for example, to include in a book). Read your contract or ask. •

When can I use other authors’ copyrighted work? Under federal copyright law, “fair use” is the right to use copyrighted material without permission or payment under limited circumstances. Fair Use has been part of copyright law for over 170 years. There are “guidelines” in determining “fair use, ” but the answer depends on a case-by-case analysis.

When relying on the fair use exception, ask: • 1. Did your unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original? • 2. Was the material taken appropriate in kind amount, considering the nature of the copyrighted work and of the use?

Example • Family Stories, Dorianne Laux solar plexus, • and nobody ever forgave anyone • I had a boyfriend who told me stories about his family, • • how an argument once ended • when his father • seized a lit birthday cake in both • hands • and hurled it out a second-story • window. That, • I thought, was what a normal • family was like: anger • sent out across the sill, landing like • a gift • to decorate the sidewalk below. In mine • it was fists and direct hits to the . But I believed the people in his stories really loved one another, even when they yelled and shoved their feet through cabinet doors, or held a chair like a bottle of cheap champagne, christening the wall, rungs exploding from their holes.

• • • I said it sounded harmless, the pomp and fury of the passionate. He said it was a curse being born Italian and Catholic and when he looked from that window what he saw was the moment rudely crushed. But all I could see was a gorgeous three-layer cake gliding like a battered ship down the sidewalk, the smoking candles broken, sunk deep in the icing, a few still burning.

– Celebration Tolstoy said all unhappy families Are unhappy in their own way. I believed the people in my family really loved one another, even when they yelled and shoved their feet through cabinet doors, or held a chair like a bottle Of Korbel, christening the wall, rungs exploding from their holes. it sounded harmless, the pomp and fury of the passionate. Why long for happiness, that clean slice of layer cake, the proper fork, the frosting melting in your mouth?

Further examples of fair use Poems that constitute parody, satire and commentary. • Under fair use, a poet may adapt a poem or a portion of a poem in order to (1) offer a critique of that poem, its author, or its genre; • (2) present a genuine homage [tribute] to a poet or genre; or • (3) hold up to ridicule a social, political, or cultural trend or phenomenon.

• This Is Just To Say • • • • • by William Carlos Williams I have eaten the plums that were in the icebox and which you were probably saving for breakfast Forgive me they were delicious so sweet and so cold • • • • This is Just to Say I have taken the Rolex I found sitting on your bureau that you were probably planning to wear to your interview. Forgive me. It was so shiny and alluring Its soft tick against my wrist. • • •

Mash-ups in Poetry? • Remix, Pistiche, Cento, and Allusion • Under fair use, a poet may make use of quotations from existing poetry, literary prose, and non-literary material, if these quotations are re-presented in poetic forms that add value through significant imaginative or intellectual transformation, whether direct or (as in the case of poetry-generating software) indirect.

• How Does Copyright Infringement Relate to Plagiarism? • Plagiarism is taking the work of another (whether copyrighted or not) and passing it off as one’s own. It is unethical and will disqualify a poet from publishing the work as the poet’s own. Although plagiarism may be theft or fraud, it is not generally prosecuted as a crime.

II. Trademark • A trademark is any word, name, or symbol that identifies and distinguishes the source of the goods of one party from those of others. [Similarly, a service mark is any word, name, symbol or device that identifies and distinguishes the services of one party from those of others. ]

• WHAT IS TRADEMARK LAW • Trademark law is embodied in a federal statute that protects the use of words, symbols, designs or logos that identify and distinguish a source of goods. • The scope of trademark protection is generally to protect the mark for the sale of the same or related goods, i. e. , a computer company could name their new computer "Nike", and it (probably) wouldn't be a trademark infringement upon the athletic shoe company.

Trademark Infringement The three things to consider in connection with the use of trademarked brand names in poetry or fiction are trademark infringement, trademark dilution, and trademark tarnishment/defamation. • • 1. A classic case of "trademark infringement" is the unauthorized use of a name in a way that creates a likelihood of confusion in a reader’s mind as to the origin of the goods or services. This rarely happens in creative writing as the author intends the reader to recognize the product for what it is. •

Trademark Violations • Trademark dilution" is a somewhat different legal theory that gives owners of brand names a legal right to prohibit others from using those names in a manner that would make them less "distinctive, " less able to identify and distinguish the owner’s goods or services from similar products. For example, using Kleenex without a capital K would tend to make the word “generic” and risk losing trademark status. • Words that have become generic and lost their trademark status: aspirin, thermos, linoleum, laundromat, heroin, zipper

Trademark Violations • Defamation" and "tarnishment" are the areas where there could be greater cause for concern. If, for example, you falsely depict a brand name product as being dangerous or defective, a manufacturer will be heard to complain. If you write that a swine flu epidemic was started by a Kleenex, you are defaming the product.

Tips to avoid Trademark Violations • Always capitalize the trademarked project and spell it correctly. • If you plan to write about a product in a way that would disparage it, give it a different name. • Where possible, use a generic term (ie “coffeehouse”) instead of a trademarked one (ie “Starbucks. ”) This is often not desirable because writers often choose a name for its sound or for other features associated with the specific name.

III. Libel • WHAT IS Libel? • Libel is a written form of defamation—a term for any untrue statement which is made public that hurts someone's reputation. Defamation is not a crime. Rather, it is a tort (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming for money damages that result from damage to reputation.

Defamation requires: • A statement of Fact • “Of and concerning” a specific live person who is identified or easily identifiable • That is Untrue, and • Injures the person’s reputation • Note: dead people can’t be defamed

Tips to Avoid a Defamation Claim • Obscure the identity of the person you are writing about. Note: the issue is whether the person can be “identified. ” Just changing the name may not be enough if other factors clearly point to that person. • Do not say anything about the person that is not verifiably true. • Read your contract with your publisher (does it say the publisher will defend you against libel claims? Are you required to defend and pay? ) • Don’t “settle scores” through poetry or fiction.

Is this poem libel? • • • • • Getting Away with Murder We all knew he’d murdered her, Maybe not a swift hick to the ribs, One that crumpled her in two, but We could see thin line of his lips, Watching as she laughed with friends Over lager at O’Leary’s. She was not supposed to laugh. No smiling. Sit right by him, quiet and composed, like a lapdog, lick the hand that fed her. We could see her turning into jutting bones, nothing sticking to her ribs. He thought he was immune, thought his gift as funny man would insulate him from our questions. • • • • We saw nothing funny. Her name was Rose, but what was pink leached out, leaving her like gum chewed too long, turned to spit and cardboard. We had our jobs to think about. He said she went to Barcelona with a lover. Made sense. She was a flight attendant. Then he fired everyone who’d ever met her. By the next fall, she wasn’t back. We all knew. Knew he’d murdered her. But by then, we didn’t care. We’d moved on.

What about this one? • • • • • Radio Personalities • We heard her tone of voice change • from “And now, here’s Colin” • to something more flirtatious, • something that turned from emcee • to embracee, her voice alilt with wit. • • We want to continue to support • Our station, , WNPR, our civic duty • to help the radio that brings us • what we really want-the news beneath the news. And wonder, “What’s the news beneath their news? ” Then Marci sees them at the Frontlight, laughing, heads together, his almost bald, her blond braids dancing up and down, his hand on her thigh beneath her skirt. Must we pay for infidelity? Can we allocate our dollars just to Terry Gross? Which prize should we choose? The picture book on New England rivers or the coffee cup that says “We go beneath the news? ”

Summary • Your own work is automatically copyrighted • If you use a line from someone else’s work (copyrighted or not), put it in italics or otherwise indicate you didn’t write it. • If you use a brand name, capitalize it and don’t disparage it. • Change people’s names and don’t make villains recognizable.

• Thanks to: • Lawrence H. Lissitzyn for research • For a copy of this presentation, go to • www. Christine. Beck. net