Sunday, December 10, 2023

What Writers Should Know about Copyright Infringement

The headlines in The Washington Post read: "Judge Refuses to Block Release of Spielberg's Amistad. Plagiarism Suit Against Filmmaker to Proceed."

Echoing Dorothy Parker's bon mot that "The only ism Hollywood believes in is plagiarism," bestselling African American novelist, poet, and sculptor, Barbara Chase-Riboud, claimed that Steven Spielberg's film Amistad infringed the copyright to her novel about a real-life mutiny aboard a slave ship off the coast of Cuba in 1839. Specifically, Chase-Riboud alleged that the DreamWorks' script impermissibly copied "themes, dialogue, characters, relationships, plots, scenes and fictional inventions" from her 1989 historical novel, Echo of Lions.

Movie Poster for Steven Spielberg's Amistad

Although Spielberg's production company had flown Chase-Riboud to Los Angeles in 1988 to discuss optioning rights to her novel, and there existed ample evidence of overlap between ideas and characters in the novel and the film, the court recognized that historical facts and basic character types are not protectable. Since the only common elements between the book and movie related to historical facts and broadly drawn characters, the court determined it was unlikely Ms. Chase-Riboud's claim would succeed at trial. Consequently, her motion for summary judgment -- which would have assured a quick resolution of her claim -- was denied.

The Fuzzy Line Between Permissible and Impermissible Copying

Because copyright does not protect ideas and facts, or material traceable to timeless themes, copying alone is not enough to prove copyright infringement. To prove copyright infringement, a copyright owner must prove that the infringer copied protected material. When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas and historical facts) and compare the copyrightable elements in the works. Unfortunately, as this case illustrates, there is no simple test to distinguish unprotected ideas from protected expression.

"Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement."

Under copyright law, only an author's particular expression of an idea, and not the idea itself, is protectable. Prior lawsuits have held that basic plots, stock settings, and stereotypical characters (e.g., prostitutes with hearts of gold, sympathetic mob bosses, corrupt cops, Nazi zombies) are not protected by copyright. These literary devices -- which are part of every novelist's and screenwriter's toolkit -- belong to a common pool of literary techniques analogous to unprotected ideas.

The Copyright Infringement Test 

In a copyright infringement case the plaintiff is required to prove that the defendant actually copied its work and that the copying was so "substantial" as to constitute an unlawful taking of the plaintiff's work. Unlawful copying exists when there is not only substantial similarity between two works but also substantial similarity between protectable elements.

In the Amistad case, since DreamWorks did not dispute having access to Chase-Riboud's book, the only issue for the court to decide was whether substantial similarity of expression between the two works existed.

Comparison of the Two Works

In finding DreamWorks did not violate Chase-Riboud's copyright, the court looked at the "total concept and feel" of the two works -- the standard test for assessing the substantial similarity of expressive elements between a film and a book. The "total concept and feel" analysis looks at similarities of plot, mood, text, setting, sequence of events, and characterizations from the vantage point of the average lay observer.

Because the plot, setting, and general sequence of events of the two works were -- in the court's opinion -- dictated by the historical record, the court determined that the plaintiff could not sustain her burden of proof on these factors alone. As a general rule, historical works, including historical novels that track real events closely, receive less protection than fictional works or works loosely based on real events. Moreover, the court noted that the mood and pace of Echo of Lions, which contains a poignant love story, was much different from Amistad, whose mood and flow were dictated solely by historical events.

Since Chase-Riboud also relied on certain specific examples of substantial similarity to support her claim, those examples, too, were analyzed by the court. But none of those basic resemblance, or common themes, were enough. Interestingly, neither the court nor Chase-Riboud cited specific instances of dialogue appropriation.

Looking at certain specific claims, Chase-Reboud claimed that a fictional Black abolitionist named Henry Braithwaite overlapped with Amistad's Theodore Joadson. While both fictional characters are depicted as wealthy, erudite  Black abolitionists residing in New Haven, according to the court, they share little else in common. For example, Amistad's Joadson was a runaway slave, whereas Braithwaite came from a land-owning family that arrived in America in the mid-1600s. Unlike Chase-Riboud's character, Joadson had a critical role in the African's defense, including interviewing attorneys and urging John Quincy Adams to represent them at trial.

While noting that well-developed characters -- especially visually depicted ones -- are eligible for copyright protection, the court held that since the idea of a Black abolitionist appearing in both works was predictable, and only superficial similarities existed between Braithwaite and Joadson, no reasonable juror would find the characters substantially similar from a copyright point-of-view.

Similarly, Chase-Riboud claimed that DreamWorks stole certain ideas and plot devices -- not supported by the historical record -- relating to a historical character named Cinque, who was featured in both works. However, the court held that Chase-Riboud's portrait of the slave Cinque, which included a relationship with John Quincy Adams, was not the stuff that infringements are made of. While "both" Cinque's shared certain similarities, the court held that Chase-Riboud's character was not sufficiently distinctive to enjoy copyright protection. Moreover, since both works "expressed" Cinque differently, the court held that there was no substantial similarity. Moving beyond the characterizations, the court found that other specific claims of similarity, including common endings tied to the Civil War, and the destruction of a slave colony with the rendering of the Supreme Court decision freeing the slaves, were sufficiently different as to defeat Chase-Riboud's claims.

Case Settled

Hinting at a financial settlement, The Los Angeles Times reported on February 10, 1998, that Chase-Riboud had released the following statement: “After my lawyers had a chance to review DreamWorks’ files and other documents and evidence, my lawyers and I concluded that neither Steven Spielberg nor DreamWorks did anything improper, and I instructed my lawyers to conclude this matter in a timely and amicable fashion. I think ‘Amistad’ is a splendid piece of work, and I applaud Mr. Spielberg for having the courage to make it.”

Conclusion

What this case shows is that copyright infringement is not about taking an author's generalized themes but her particular expression of those themes. What this means is that an author's exclusive rights are largely confined to the details and method of her presentation. Moreover, copyright in historical research only occurs if there is extensive copying of an author's selection or arrangement of historical facts or how those historical facts are described.

In determining similar cases, courts will continue to evaluate plots, moods, scenes, sequences, events, and characterizations to determine whether the defendant has captured the "total look and feel" of the plaintiff's work. As seen in the Amistad case, courts will also review differences, as well as similarities, between the two works when making infringement decisions.

Even assuming a film is adapted from a novel, a subsequent author may legitimately avoid infringement by making sufficient changes in a work that would otherwise be substantially similar to the plaintiff's original individualized expression. Of course, doing so is risky business since the test for copyright infringement is, at best, a subjective determination. Therefore, when in doubt, obtain an film or television option, or draw from the well of timeless literary themes or your own reserve of creativity.

Idea Misappropriation 

While copyright is very important, a work may be protected under other legal theories. For example, under the law of idea misappropriation -- which varies from state to state -- if you submit a story idea to someone, and the idea is used, provided there was a prior understanding you would be paid for your idea, an enforceable contract may exist. The best way to protect against idea misappropriation is to deal with reputable parties and create a paper trail. Keep a record of who you sent your script to and when. It is also a good idea to send a self-serving confirmation letter after pitch meetings, confirming that you met to discuss the possible development of your project. Since producers may claim that they had a similar project in development, it is important to document the idea before sharing it with others. Therefore, it is a good idea to register your work with the Copyright Office (preferable) or the Writers Guild of America (less preferable) before putting your screenplay into circulation.

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DISCLAIMER: This article represents copyrighted material and may only be reproduced in whole for personal or classroom use. It may not be edited, altered, or otherwise modified except with the express permission of the author. This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD J. JASSIN is a New York-based publishing and entertainment attorney in private practice. He is co-author of the bestselling Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.) and former director of publicity for a division of Simon & Schuster. Mr. Jassin has written extensively on negotiating contracts in the publishing and entertainment industries and lectures frequently on contract and copyright issues affecting creators. He may reached at Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1501 Broadway, FL 12, New York, NY 10036, and Madison, NJ.

(c) 1999 - 2024. Lloyd J. Jassin. 

This article originally appeared in Creative Screenwriting Magazine.



Tuesday, November 21, 2023

AI, Copyright Law, and Publisher Trust: Balancing Incentives and Authenticity

In an article I wrote for Publishers Weekly late last year, I wrote that Generative Artificial Intelligence ("GAI") challenges accepted notions of creativity and authorship. 

I also wrote that to understand copyright law, you had to understand the policy behind copyright law. The premise is that without copyright, authors would have no incentive to create new works.  

However, algorithms and artificial intelligence don't require incentives in the same way humans do. Unlike book publishers, who generate royalties for human authors, internet platforms prioritize data-driven and machine-learning engagement for advertising revenue. In doing so, they harness user interactions and behavior to sustain their financial models. As a result, these AI systems can generate vast amounts of content, from good enough to outright toxic, blending fact and fiction without any regard for copyright protections or permissions. This glut of AI-generated media poses complex questions about information quality and attribution as well as the boundaries of creativity and originality.

As the volume of AI-generated media increases, the provenance of information will become more important, creating market incentives and consumer demand for publishers and creators who can demonstrate authenticity and high quality.
While addressing the complexities of regulating AI-generated content remains an open question, the established community of publishers has an important advantage in addressing the comfort level of consumers as provenance plays a central role in fostering trust and reliability in information. Publishers (with a capital “P”), through selectivity in what they acquire, careful editing, collaboration amongst sales and marketing, publicity, and the payment of royalties, offer a baseline of trust in the data they publish. 

Amidst growing uncertainty in consumer trust towards AI, the presence of author brands, publisher imprints, and robust metadata becomes pivotal. These elements act as guiding beacons for consumers, helping them navigate the overwhelming volume of data and identify high-quality works amidst the vast sea of information.

Without trademarks, John Oathout, author of Trademarks, wrote, "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking."

Alfred A. Knopf

Alfred A. Knopf (the man, not the imprint) was keenly aware of that proposition when he wrote The Borzoi Credo, a publishing manifesto that appeared in the November 1957 issue of The Atlantic Monthly.  

It read, in part, "I believe that a publisher's imprint means something and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less." 

Unlike copyright law, trademark law can be used to stop the unauthorized use of a bestselling author's name, a series title, symbols, and markings that the public associates with a particular publisher or other source. In this respect, trademark law is an effective cudgel against those who pass off their wares as endorsed by or coming from an established creator, publisher, or producer.  

Trademark registration of an author’s name, a series title, or a publisher's imprint also opens doors to Amazon’s Brand Registry, empowering authors and publishers with takedown tools. The Brand Registry is a quick and cost-effective alternative to litigating unfair competition and right of publicity claims. The hitch, it the name or mark must be registered, which requires showing consumers perceive the name to be a badge for literary services.

While the publishing industry understandably has antagonism towards large language models, the industry will no doubt take an active part in shaping the future of AI, whether through legislation, licensing their books to train AI, creating bespoke AI models with their own curated datasets, and trumpeting the Good Housekeeping Seal of Approval value of their author and publisher brands.  

To return to the premise of this post, that GAI is undermining the incentives given to authors by copyright law while fulfilling the purpose of copyright, that tension will work itself out over time, but we need human editors and publishers for transparency, accountability, and quality control purposes. 



Friday, September 29, 2023

My Article in Publishers Weekly - "Generative AI vs Copyright"

Pleased to have Publishers Weekly publish my article on the impact Generative AI will have on the publishing industry. 

When it comes to text, Generative AI (GAI) is an artful plagiarist. It knows how to dance around copyright. The predictive model emulates, it doesn’t copy. The upshot is copyright, which is basically a nuanced law of reprinting bans, is ill-equipped to deal with GAI. The question is can it be modified to address the threat to human authors.  

Click here to read my article.  


                                                                       


 

 

 

 

Wednesday, August 23, 2023

Fighting Fake AI Generated Books on Amazon

How to Remove a Counterfeit Book from Amazon

An author's brand represents the goodwill built over the years through the consistent quality of their literary output.  Amidst a deluge of inaccurately labeled and untrustworthy AI-generated content, building and protecting that brand, whether a series name or a pseudonym, has become essential to enjoying a durable career.  

The Business of Being An Author by Jane FriedmanTrademark law protects consumers from being misled. It also protects the investment that authors and publishers make in building their brands. A federally registered trademark gives the owner the right to sue in federal court. Additionally, if they record their registration with Amazon's Brand Registry (discussed later), they gain the ability to stop sellers from using the trademark, or variations of that trademark, for related goods or services.

Unfair competition law, governed by overlapping state and federal law, is commonly used as a cudgel to go after bad actors who try to deceive consumers into falsely believing their goods (including books, blogs, podcasts, and businesses) have been approved or endorsed by others. Even where a pseudonym or series title has not been registered, it's a violation of unfair competition law to misrepresent the source or approval of creative works.

Recently, author and publishing strategist Jane Friedman discovered multiple books published on Amazon under her own name that she did not write, constituting a clear case of free-riding on her reputation, or false designation of origin under both state and federal law.

Jane's unregistered brand is associated in the public's mind with her in-depth knowledge of writing, book marketing, digital media, author platform building, and navigating the changing landscape of the publishing industry. Fortunately, Jane was able to use her influence, rather than litigation, to get Amazon to take the books down. But there's a third way to combat free-riding on an author's reputation -- Amazon's Brand Registry.

Registering a series title, pseudonym, or well-known author's name with the Trademark Office opens the door to Amazon’s Brand Registry, which offers powerful tools for removing unauthorized content. The registry serves as a cost-effective alternative to litigation when the game isn't worth the candle due to the uncertainty and expense of trademark litigation. The one hitch is the series title or name must be perceived as a mark for literary services.

While the Trademark Office may haggle over whether a series title or an author's name "functions as a mark," authors and publishers must be vigilant in protecting both their copyrights and their brands.

Amazon's Copyright Infringement Tool 

If your beef with Amazon is with someone using your individualized expression without permission, that's a copyright violation, the Brand Registry is the wrong tool for the job. In that case, use Amazon's report the infringement takedown tool.   

For a deeper dive into the trademark registration process, here's what the Trademark Manual of Examining Procedures has to say about the registration of personal names and pseudonyms. These guidelines are intended for Trademark Office examiners to follow. Pretty dry stuff, I fear, except for brand geeks like myself and fans of Corky the Clown and The Lollipop Princess (discussed below). 'Spoiler alert:' Both the Corky the Clown and The Lollipop Princess trademarks were approved.

Trademark Manual of Examining Procedures [excerpt]

1202.09(a)    Names and Pseudonyms of Authors and Performing Artists

Any mark consisting of the name of an author used on a written work, or the name of a performing artist on a sound recording, must be refused registration under §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, and 1127, if the mark is used solely to identify the writer or the artist. See In re Polar Music Int’l AB, 714 F.2d 1567, 1572, 221 USPQ 315, 318 (Fed. Cir. 1983); In re Arnold, 105 USPQ2d 1953, 1957-60 (TTAB 2013); In re First Draft, Inc. 76 USPQ2d 1183, 1190 (TTAB 2005); In re Peter Spirer, 225 USPQ 693, 695 (TTAB 1985). Written works include books or columns, and may be presented in print, recorded, or electronic form. Likewise, sound recordings may be presented in recorded or electronic form.

However, the name of the author or performer may be registered if:

  • (1) It is used on a series of written or recorded works; and
  • (2) The application contains sufficient evidence that the name identifies the source of the series and not merely the writer of the written work or the name of the performing artist.

In re Arnold, 105 USPQ2d at 1958.

If the applicant cannot show a series or can show that there is a series but cannot show that the name identifies the source of the series, the mark may be registered on the Supplemental Register in an application under §1 or §44 of the Trademark Act. These types of marks may not be registered on the Principal Register under §2(f).

See also TMEP §1301.02(b) regarding personal names as service marks (below). 

1301.02(b)    Names of Characters or Personal Names as Service Marks

[P]ersonal names (actual names and pseudonyms) of individuals or groups function as marks only if they identify and distinguish the services recited and not merely the individual or group. In re Mancino, 219 USPQ 1047 (TTAB 1983) (holding that BOOM BOOM would be viewed by the public solely as applicant’s professional boxing nickname and not as an identifier of the service of conducting professional boxing exhibitions); In re Lee Trevino Enters., 182 USPQ 253 (TTAB 1974) (LEE TREVINO used merely to identify a famous professional golfer rather than as a mark to identify and distinguish any services rendered by him); In re Generation Gap Prods., Inc., 170 USPQ 423 (TTAB 1971) (GORDON ROSE used only to identify a particular individual and not as a service mark to identify the services of a singing group).

 The name of a character or person is registrable as a service mark if the record shows that it is used in a manner that would be perceived by purchasers as identifying the services in addition to the character or person. In re Fla. Cypress Gardens Inc., 208 USPQ 288 (TTAB 1980) (name CORKY THE CLOWN used on handbills found to function as a mark to identify live performances by a clown, where the mark was used to identify not just the character but also the act or entertainment service performed by the character); In re Carson, 197 USPQ 554 (TTAB 1977) (individual’s name held to function as mark, where specimen showed use of the name in conjunction with a reference to services and information as to the location and times of performances, costs of tickets, and places where tickets could be purchased); In re Ames, 160 USPQ 214 (TTAB 1968) (name of musical group functions as mark, where name was used on advertisements that prominently featured a photograph of the group and gave the name, address, and telephone number of the group’s booking agent); In re Folk, 160 USPQ 213 (TTAB 1968) (THE LOLLIPOP PRINCESS functions as a service mark for entertainment services, namely, telling children’s stories by radio broadcasting and personal appearances).

See TMEP §§1202.09(a) et seq. regarding the registrability of the names and pseudonyms of authors and performing artists, and TMEP §1202.09(b) regarding the registrability of the names of artists used on original works of art. 

 




Tuesday, June 20, 2023

BookTok Star Signs Global Deal With Simon & Schuster

New York -- June 20, 2023 --  Lloyd Jassin was featured in the Bookseller article, "S&S Children's pre-empts 'unmissable' YA romantasy from BookTok star Roberts." View the full article.

Mr. Jassin represented self-published author Lauren Roberts in a fast-moving three-book global co-publishing deal for Roberts’ young adult fantasy that "follows the forbidden romance between a powerful prince and an ordinary girl as they try to survive their kingdom’s grueling laws pitting them against each other."

The global pre-empt by Simon & Schuster was led by UK editor Amina Youssef, Simon & Schuster Children's Books. 

S&S will publish the first book in the UK on July 6, 2023, and in the US on November 7, 2023, with book two following in 2024 and book three in 2025.

In a series of heated auctions, foreign rights have already been sold to publishing partners in France (Editions Gallimard), Germany (Blanvalet), Spain (Salamandra), Italy (Newton Compton), Poland (Foksal), and Turkey (Beta).

Background

Based in New York City, Lloyd J. Jassin provides clients in the publishing and entertainment fields with business-oriented legal counsel.  

Contact: (212) 354-4442