A Writer's Guide to Copyright Fair Use

Fair Use Uses a Four Part Balancing Test

Fair use allows authors and other creators to make reasonable use of copyrighted material without paying a fee. It functions as a free expression safety valve by allowing authors to make statements about important societal issues. Without it, copyright owners could squash criticism, commentary, news reporting, scholarship, and even research they didn't like or approve of.

Understanding Fair Use

Fair use is a defense against copyright infringement. Courts favor uses that challenge, interpret, build upon, tease, or poke fun at the original work, resulting in new insights and meaning. Such uses are known as transformative uses. Examples of transformative uses include editorials, criticism, scholarship, news reporting, teaching, and parody. The more transformative the use, the greater the likelihood the use will fit under the aegis of fair use. In addition, courts favor uses that are primarily educational or noncommercial.  Uses that displace sales or licensing opportunities for the owner of a work seldom qualify.

The Four Fair Use Factors

Using a four-factor fairness test, courts weigh the exclusive rights of copyright owners against the societal interest in the free flow of information. No one of the following factors is determinant, although factor four, which relates to economic harm to the copyright owner, weighs heavily in any fair use decision.

1.     The purposes and character of the use, including whether the use is primarily commercial. This factor also weigh the transformative nature of the use; 

2.     The nature of the work that's been copied;

3.     The amount and importance of what's quoted in relation to the original work;

4.     The effect the copying has on the market for the original work and its derivatives 

"Courts are solicitous of commercial publishers' free speech rights.  Therefore, the fact that a publication is sold does not strip it of fair use protection. Fair use determinations are based on the totality of the factors. No one factor is controlling."

Useful Fair Use Tips and Strategies

Despite the ad hoc nature of reported fair use decisions, here are general guidelines to help you ascertain if you have a viable fair use defense. 

• Fair use favors transformative uses. Are you using the work as a springboard to make new insights? Do you critique the original? Have you made a connection between the work you've copied and other works? Are you using the work to buttress your arguments or the arguments of others?
• Is the use a commercial use? While relevant, a commercial use is not dispositive. If the use can provide some social benefit, "by shedding light on a earlier work, and in the process creating a new one," the use may still be a fair use. 
•  In Andy Warhol Foundation v. Goldsmith (2023), the U.S. Supreme Court held that the claim to fairness diminishes, "where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it."
• Since ideas are common property, fair use is more likely to be found using factual material.  
• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so fair use tilts against the use of these works.
• Quoting from an unpublished work will expose you to greater risk than quoting previously published materials.
• The use must be reasonable in light of the purpose of the copying. The less you copy, the more likely fair use will be found. However, sometimes even a small (but important) portion borrowed from a work may qualify as an infringement.
• Synthesize facts in your own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
• Lack of credit, or improper credit, weighs against finding fair use. However, giving credit will not transform an infringing use into a fair use.
• A parody (lawful), as opposed to satire (unlawful) is a work that ridicules or mocks another work. Fair use looks favorably upon parody. Make sure the parody is apparent and conjure up just enough of the original to convey your parodic points. 
• While fair use favors non-profit activities, being a not-for-profit will not automatically shield you from liability if your actions reduce the monetary incentives for creating future works. 

To sum up, don't compete with the work you copied. If the use displaces or diminishes the market for the original work, including potential licensing revenue, likely it's not a fair use. Generally, the more transformative the work is, the less the economic impact is.

Does Your LLC Protect You from Personal Liability for Infringement?

No, it does not. If you personally direct the infringement, your personal LLC or corporation will not shield you from personal liability for claims of either copyright or trademark infringement.  Under the theory of vicarious liability, infringement may arise if the managing member or corporate officer has the right and ability to supervise the infringement and a direct financial interest. Further, if you have knowledge of the infringement, and materially contribute to the infringing conduct of another or encourage or assist in the infringement, you may be liable for contributory infringement. 

 

Conclusion
 

Reminder. Fair use is a defense to copyright infringement. Unfortunately, fairness, like beauty, can be debated but not defined. If you are uncomfortable with the case-by-case nature of fair use determinations, consult with a copyright attorney. They can help you walk the sometimes tricky line between fair and foul use. By hiring an attorney, and following their advice, your good faith effort to ensure fair use applies, may have a positive impact on the measure of damages if a court rejects your fair use defense. Finally, your attorney can advise you on how to protect yourself against claims of infringement (and other media perils) with publisher's liability insurance. 

Resources

A Guide to Trademark Fair Use & Title Clearance

Trademark Registration and the Single Book Title

  

Image: Tight-Rope Walker, c.1885 (oil on canvas)

About the Artist:  Jean Louis Forain  (1852 - 1931)

 

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give specific legal advice about specific circumstances. Professional legal advice should be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing, and entertainment attorney. He is co-author of the Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors, and Publishers (John Wiley & Sons, Inc.). In addition, Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries and lectures frequently on contract and copyright issues affecting creators and their publisher partners. A long-time supporter of independent presses, he was First Amendment counsel to the Independent Book Publishers Association  (IBPA) and is a member of The Beacon Press advisory board.  

You may reach attorney Jassin at jassin@copylaw.org or at (212) 354-4442. His offices are in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036. Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin

 

How to Select a Book Title (and Not Get Sued)

Choosing the perfect book title is not just a marketing decision, it is a legal determination. It should provoke interest and curiosity in the book (or the product or service you sell on the back end) and not a lawsuit by an aggrieved trademark owner or removal of your listing via Amazon's report a violation and takedown tool.    

 

A trademark screening search will alert you if a book, podcast, or title of another creative work is likely to encounter legal problems.

 

Why Do a Trademark Screening Search? 

 

A screening search reduces the potential for trademark infringement claims. Before finalizing your title selection, it's important to do a preliminary search to determine if any similar or identical marks are used for related goods or services. While it is true that titles are not protected by copyright, if potential purchasers are likely to be confused about the source or sponsorship of a book, it could result in a trademark infringement or unfair competition claim. 

 

Making a Screening Search Part of the Process is Easy

  

A proper investigation includes using the Google search engine and the Trademark Office's 24/7 online database. These are invaluable tools for identifying obvious conflicts – identical or similar marks for related goods or services. Referred to by trademark attorneys as TESS, the free Trademark Electronic Search System database is located at http://tmsearch.uspto.gov. 

When doing a screening search, the central question is whether there is a confusing similarity to someone else's mark.  In evaluating the likelihood of confusion, the three key considerations are:

• Has the mark been registered? 
• How similar are the marks? 
• Are the goods or services related?
  

Similarities in sight, sound, and meaning, and the relatedness of the senior user's goods and services are the key vectors in any trademark infringement analysis. 

If the title you’ve selected is already registered by someone for related goods or services, absent a valid First Amendment defense (discussed later), soldier on and select another title. Put another way, if they cared enough to register their mark, there’s a good chance they are prepared to fight to protect it. 

CAUTION. Trademark rights are obtained through use, not registration.  That means you should also search the internet for marks that may raise legal issues. If seeking to register a trademark, a comprehensive full search and attorney clearance opinion is recommended. 

Free Expression and Fair Use Exceptions

Not every use of a trademark (or similar title) without permission is an infringement. There are many legitimate reasons to use a particular word or phrase as the title of a work that doesn’t have anything to do with trading on another party's goodwill, fame, or reputation. For example, words that merely describe the contents of a work are, at best, weak trademarks and receive no protection without proof that consumers associate them with a particular source. By source, the Trademark Act refers to the source of the physical or virtual goods rather than the author.

No matter how clever, single titles are not entitled to trademark registration.  However, if a single title attains secondary meaning -- a level of commercial magnetism associated with a runaway bestseller -- it can still be protected absent registration. 

Generic titles (100 Best Science Fiction Movies) standing alone are not entitled to trademark protection.­­­­ 

In analyzing whether a title infringes a trademark or another title, courts balance the right to speak freely against the trademark owner's rights. While using a disclaimer (the subject of a future post) is not a magic bullet, a prominent disclaimer can help reduce the potential for consumer confusion.

For a deeper dive on title clearance, click here. 

A Warning Before You Start Your Search

Given the subjective nature of of trademark law, deciding on your title depends on your risk tolerance, informed by search quality and legal analysis. When uncertain, it's wise to seek guidance from a trademark attorney. They can assess if your title is suitable for registration, and assist you in navigating the trademark registration maze.

How to Trademark a Book Title

A trademark registration gives you the exclusive right to use a trademark. Once you register a trademark, you can stop others from using both identical and confusingly similar marks for related goods or services.  

However, a single book title cannot be registered as a trademark unless it is used for a series of works (e.g., Harry Potter and the Philosopher's Stone, Harry Potter and the Chamber of Secrets).  In other words, a trademark can only be tied to a series of literary works, not a single title. 

The rationale for the “single title rule” is that once a book enters the public domain, it should remain there, and the public should have the right to identify it by its original title.

So how do you protect the first title in what you hope will be the next Hunger Games trilogy or Harry Potter series of fantasy novels? 

How Do I Protect the First Book in a Series?

The are to two ways to acquire trademark rights. The first is based on being the first to use the mark in connection with the sale or marketing of specific goods or services. The second is to be the first to file an Intent to Use application with the Patent and Trademark Office. After the PTO trademark examiner approves your Intent to Use application, you will have six months within which to file a Statement of Use. If you need more time to publish the second book in the series, you can file for multiple six-month extensions. By filing an Intent to Use application, you are staking out a claim to the title. Assuming your application meets the minimum filing requirements when the second book in the series is published and a Statement of Use is filed, the Trademark Office will re-evaluate the application. The key benefit of filing on this basis is that an Intent to Use application will temporarily block other later filed trademark applications for identical (or confusingly similar) marks for related goods.

When you obtain the registration for your title, the date you filed the Intent to Use application will serve as the date of first use. That gives you priority over those who began using the trademark after you filed.

A slightly different process is involved if you have an established book series. In either instance, you will need to publish book two in the series to obtain a federal registration.

 

If You Can't Protect a Single Title, Protect the Business or Website

While you can't register a single book title, you may be able to register a trademark for related goods or services, e.g., your business or a companion website. If consumers would reasonably assume that the owner of a product or service gave permission to publish a book with a confusingly similar title, but they didn’t, that deception may rise to the level of unfair competition (discussed later). 

 

Tip. Remember, trademark infringement is not simply a book-to-book, blog-to-blog, or app-to-app comparison. While conventional wisdom says you can't compare apples to oranges, they are both grown in orchards, are considered a fruit and are sold in the same section of your local supermarket. That makes them related for purposes of trademark law. If you don't have a book series, register the mark for the business behind the book, the website, or a related product or service. 

Unfair Competition

Unfair competition 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, and businesses) have been approved or endorsed by others. Even where a trademark has not been registered, it’s a violation of unfair competition law – and commercial morality -- to misrepresent the source or approval of a creative work.

Did you know the trademark for an existing business could prevent you from using a book title?

Suppose you are the owner of a successful business.  Under those circumstances, if consumers saw an unauthorized book with a confusingly similar title to your company and believed it was endorsed by you, that deceitful practice would fall under unfair competition law. 

Case & Comment. In a case involving the Ralph Lauren Polo brand, a court permanently stopped the unauthorized use of the name Polo for a lifestyle magazine. In granting the injunction, the court rationalized that the magazine and Ralph Lauren’s Polo brand were associated with fashion, elegance, and affluent lifestyles in the public's mind. While the First Amendment will allow you to write a book about Ralph Lauren and the fashion brand’s cultural significance, you cannot ride on Ralph Lauren’s designer coattails to boost your business by falsely implying an association when none exists.

For a deeper dive on trademark fair use and title clearance, click here.  

###

TITLE CLEARANCE CHECKLIST

1.  Avoid titles that would confuse people into mistakenly believing that your work is associated with, endorsed by, or licensed for use by another party.    

2.  Likelihood of confusion (the test for trademark infringement) isn’t just about the confusion between similar literary titles. Protectable titles in one media (movies, video games, podcasts) may be protected in different media (books, sound recordings) if there is a likelihood of confusion.

3. In evaluating search results, consider the following:   

. Does the word or phrase have widespread public recognition?

. How similar is the word or phrase to your proposed title?

. Is the word or phrase used for related goods or services?

4.  Important! Marks only need to be confusingly similar, not exactly alike. Don’t ignore descriptive marks that have become associated with a single source over time.   

5.  Protectable titles in one media may be protected in different media if they are marketed through the same trade channels and sold to the same class of consumers or if it’s reasonable for consumers to believe the trademark owner approved the use of the title. 

6.  Descriptive terms that have not achieved public recognition due to widespread media attention and strong sales are not protected under trademark law and cannot serve as the basis of an infringement claim. 

7.  Not just words, but the look and feel of a book jacket can infringe an existing trademark. Courts look at the total image of the book cover (format, lettering, distinctive words, illustrations, colors used, and layout) to ascertain if there’s a likelihood of confusion.

8.  The mere use of a trademark in a title is not an infringement if the title is (a) artistically relevant to the underlying work and (b) no explicit suggestion is made that the trademark owner endorsed, sponsored, or approved the work.  See #7, #14

9. A single book or other creative work title is not entitled to trademark registration unless used for a series of creative works. See #10

10. While a single title for a creative work (e.g., book, movie, or song) cannot be registered as a trademark if it becomes broadly popular and associated with a single source, especially when it starts generating spin-offs and merchandise licensing tie-ins, it may be protected under unfair competition law.  

11.  It is fair use if you use a trademark in its descriptive sense to truthfully describe the trademark owner’s goods or services, provided there's no suggestion that the trademark owner endorsed, sponsored, or approved the work.    

12.  Search for registered trademarks using the Trademark Office’s free TESS database.  Next, search your favorite search engine for common law (unregistered) marks for related goods and services. If you intend to register your title after you've ruled out obvious conflicts, obtaining a full search and registrability opinion is highly recommended. 

13.  While title clearance and trademark searches are similar, it is best to work with a trademark attorney to register a series title or the name of a business.  They can tell you if the mark is registrable and improve the chances of registration.

14.  WHEN IN DOUBT, CONTACT A TRADEMARK ATTORNEY. 

For More Information:

Contract attorney Lloyd Jassin at jassin@copylaw.org or at (212) 354-4442.  His offices are in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin 

DISCLAIMER / TERMS OF USE

Not Legal Advice.  The information contained in this blog is intended as general advice.  Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information published here.  Be aware that the law may vary from state to state.  Therefore, this blog cannot replace the advice of an experienced attorney.  No attorney-client relationship is created by your access to or use of this website.   Contacting us by email does not create an attorney-client relationship.  If you wish to establish a professional relationship, it must be done through a mutual agreement in writing.  Please do not send us any confidential information until an attorney-client relationship has been established.

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© 2022 Lloyd J. Jassin  COPYLAW is a service mark of Lloyd J. Jassin

Related Posts 

Trademark Law and Book Titles

Common Copyright Permission Myths

 

12 Common Copyright Permission Myths

Though you may not believe all twelve of these myths, familiarity with them can

free your book or blog from legal hassles. Get it wrong, and an aggrieved copyright owner can block or remove your work by filing a simple online takedown notice -- all without filing a complaint in court.  Worse still, it can spark costly and time-consuming litigation.  

1.       There's no copyright notice, so no permission is required.    

Not true.  Since March 1, 1989, copyright notice has been optional. Before that date, a copyright notice was mandatory, and a work published without a notice risked the loss of copyright protection if not promptly and adequately corrected.

2.       If I give credit, I don't need permission.

Not true. Giving proper credit is not a defense against copyright infringement. Copyright infringement is using a work without the copyright owner's permission.  By contrast, you can plagiarize material not protected by copyright simply by taking credit for it. 

3.       I don't need permission because I only use a few words.

Not necessarily. How much you can borrow is a legal gray area. Sometimes, a small but important portion borrowed from a work can infringe. Since copyright law encourages creativity and innovation, courts may excuse specific socially productive but unauthorized uses. Those uses are called fair uses.  Fair use is a defense against the rigid application of copyright law. It is determined on a case-by-case basis. It considers what's been borrowed, how much was borrowed, how it was used, its importance, and the economic impact it may have on the original.  If you borrow the "heart" of a work, it weighs against fair use. Creative works are less amenable

to a fair use defense.    
 

4.       I don't need permission because I will adapt the original work.

No. You can't make a work your own by adapting it without permission.  Copyright law grants copyright owners the exclusive right to control modifications to their work. 

5.       Since the work is in the public domain, I don't have to clear permissions.

Not necessarily.  For example, a book or motion picture may have fallen into the public domain for technical reasons, but there may still be copyrights to contend with. While a book may be in the public domain, photos or other materials that appear in the book may remain legally protected.  Similarly, the composer of an in-copyright soundtrack to an otherwise public domain film can restrict the exhibition of that film by claiming a right to the music within.  If a character falls into the public domain, the former copyright owner may still stop the commercial use of that character if the use falsely implies their support of the use.         

6.       My publisher will handle the permissions.

Probably not.  Most publishers place that burden of clearing and paying for permissions on the author's shoulders.   

7.       I can always obtain permission later.

Later may be too late. Copyright owners have the unfettered right not to grant you permission.  However, it is better to know now than later that a critical component of your work cannot be cleared for use.    

8.       Since I plan to use it for nonprofit educational purposes, I don't need permission.

Not necessarily.  The issue isn't the user; it's how the work is used. If the use falls outside the bounds of fair use -- even a nonprofit educational institution can be held liable for copyright infringement.  

9.       I don't need permission because the work I want to use is more than 75 years old.

Not necessarily. For works published after January 1, 1978, copyright protection lasts for the author's life plus another 70 years.  For a pre-1978 work by a sole author, the maximum term of copyright protection is 95 years from the date the work was published or registered.  For a work created by an employee within the scope of their work or a specially commissioned work, copyright persists for 95 years from publication or 120 years from the date of creation, whichever expires first.

10.      The material I want to quote is from an out-of-print book. Out-of-print means that the work is in the public domain.  Correct?

Not necessarily.  Out-of-print does not mean out-of-copyright.  When a book goes out of print, it usually means it is no longer profitable. While that may trigger an author's right to reclaim their copyright, it doesn't mean the book is in the public domain. See #9 above. 

11.     A Creative Commons ("CC") license means I can use the material without permission.  

Yes, but restrictions may apply.  A CC license allows specific uses for free. What those allowable uses are will vary.  For example, some CC licenses place restrictions on commercial and uncredited uses.  Some permit modifications; others may not.  To determine what is allowable, you must read the license carefully.  
  

12.    I found a photo on the Internet.  Since it was uncredited, I can use it in my book.    

Not true.  The ease with which users can upload or download online content nor the fact that content was posted anonymously on the internet places it in the public domain. 

 

 

Related:
A Primer on Fair Use

            Book Title Clearance & Trademark Registration Guide

            Book Contract Negotiation Checklist

LLOYD J.  JASSIN has practiced publishing, entertainment, and trademark law for over two decades.  Before becoming an attorney, he was Director of Publicity for Prentice Hall Press, a division of Simon & Schuster.  He is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  Contact: The Law Offices of Lloyd J. Jassin, 1501 Broadway 12th FL, New York, NY 10036 | (212) 354-4442 (tel.) | Jassin@copylaw.com www.copylaw.org | Twitter

DISCLAIMER:  This article is not intended as legal advice.  Because the law is not static and one situation may differ from the next, the author assumes no responsibility for actions taken based on information contained in this article.  Furthermore, be aware that the principles contained in this article are subject to exceptions and qualifications.  Thus, when in doubt, seek legal advice from an experienced copyright or media law attorney, or err on the side of caution and obtain permission or an appropriate release.

Jassin Quoted in Fortune

I'm quoted in Fortune: Twitter Took a Trump Tweet Down, but Should It Have? And is Nickelback to Blame?

 

In Jeff John Roberts' column in Fortune I talk about Fair Use, and the expanding scope of transformative use in the context of political discussion.   

I'm a Copyright Attorney, Not a Sorcerer (Updated 2022)

Steal Not this Book

 

Several weeks before her death, I watched Bonnie Foreman laughing and joking as she downloaded a pirated copy of my book, The Copyright Permission and Libel Handbook: The Cursed Edition. She read a lot and drove too fast. I said I'd give her six weeks to live. The autopsy carried out on her body was inconclusive. But, here's what I can tell you. She expired around page 36. Somewhere between out-of-print works and special fair use situations. Curse or coincidence? I cannot say for sure. I'm a copyright attorney, not a sorcerer. But I know it wasn't the copyright notice that did her in.

When confronted with a book curse, we are forced to reflect on our mortality. Three thousand years after the pharaoh's death, the Curse of Pharaoh Tutankhamun still conjures up fear (unlike an FBI anti-piracy warning or copyright notice). While a three-thousand-year-old curse may retain its potency, copyrights wither and fall into the public domain a mere 70 years after the creator's death. From the standpoint of being an effective deterrent, it doesn't help that copyright notices resemble frown emoticons resting on their side.   

Book Curses the Forerunner of Copyright Damages

Do you wish to protect your intellectual property but don't have the means to hire a lawyer? Gory, gruesome, nasty, cautionary, score-settling book curses were once used to stop literary thieves and plagiarists in their tracks. Unlike the copyright notice, which simply proclaims "I own this" (with reservations), curses make it abundantly clear that some profound form of adversity or misfortune will befall the person who ignores it.

While there are some issues to iron out, I have come to believe that a mix of legislative solutions, works licensed under Creative Commons licenses, and cursing offers a workable solution to an internet that wants to be free and authors who want to eat. 

Cloistered monks, ancient rabbis and old sorcerers wrote the following ancient warnings. While dormant for years, these precursors of the modern copyright notice are a creative and cost-effective way to protect your intellectual property.    

In Biblioclasm, a book about the magic powers of the written word, the author identifies the following as the most famous literary curse. It still has what it takes.

"And if any man shall take away from the words of the book of this prophesy, God shall take away his part out of the book of life, and out of the holy city, and from the things which are written in this book." -- Revelations, 22:19

Aleppo Codex

The Christian church didn't have a monopoly on literary curses. Medieval Jewish scribes issued stern warnings against modifying even a single letter of the Hebrew Bible since each of its 304,805 letters had divine meaning. For example, the following lines, written C 984, appear at the end of the Moshe Ben-Asher Codex, the oldest medieval Hebrew bible:

"Whoever alters a word of this mahzor or this writing or erases one letter or tears off a leaf . . . may he have neither pardon nor forgiveness; neither let him behold the beauty of the Lord. He shall be like a woman in impurity and like a leprous man, who has to be locked up so that his limbs may be crushed, the pride of his power broken, his flesh consumed away that it cannot be seen, and his bones that were covered made bear."

The Ben-Asher curse focuses on the integrity of the text, not theft. Under copyright law, the exclusive right to alter or adapt the text resides with the author, in this case, Yahweh. Elsewhere in the Codex, atop certain pages, it reads, "Sacred to Yahweh, not to be sold or defiled." Disgorgement of profits (a copyright remedy) better fits this type of crime than broken bones or necrotizing fasciitis. Parenthetically, the Nazi face-melting scene from Raiders of the Lost Ark has my vote for the most iconic scary movie scene in cinematic history.  

Curses and Copyright Notices 

Medieval colophons, the antecedent to the copyright notice, initially appeared as concluding statements at the end of a book or manuscript. They provided information about the scribe or copyist, the date and place of copying, and contained either a blessing or a curse. To thwart piracy, printers' marks appeared at the dawn of Western typography. So, while a direct connection between the colophon (and printer's mark) and the copyright notice may appear fuzzy, the common assertion of ownership rights and the threat of consequences for those who publish "impudent frauds" cements the connection in my mind.

Curses and copyright notices should be displayed prominently in a manner that stands out from the accompanying text.  In the Encyclopedia of the Book (Oak Knoll/British Library), Geoffrey Glaister explains that by the early 16th Century, the practice of placing a colophon at the end of a book was largely abandoned. Instead of the scribe's name appearing at the back of the book, the printer's name (and its royal license to sell the work) appeared on the title page where it could be more easily seen.  Today, copyright law provides more potent penalties against willful or knowing infringers than innocent ones. 

Similarly, with a curse, knowing you've been cursed makes the curse more potent. Although, many "sorcerers claim that curses can be just as effective without the victim's knowledge of them." See Mystica. Whether you are an "Eye of newt and toe of frog" practitioner, or a pragmatic publishing type, I  recommend you display your disclosures prominently.  

By the early 18th Century, secular threats of legal action largely supplanted curses. With the passage of the Statute of Anne in 1709, England's first copyright act, the regulation of unauthorized copying was transferred from god's jurisdiction to her Majesty's courts. In 1802, the U.S. Copyright Act, inspired by the Statute of Anne, was amended to require notice to be placed on each copy of a work.

Like colophons, copyright notices generally appear on the title page or reverse of the title page of books. The copyright symbol, the familiar © followed by the date and name of the owner (not necessarily the author), often comes with a fey warning, not a curse. Here's a mildly threatening one:

ALL RIGHTS RESERVED. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without the prior written permission of the publisher.

Not too scary. Compare the painfully polite "All Rights Reserved" statement in use today with the average illuminated manuscript curse. If you absconded with a late medieval psalter or made an unauthorized copy, you (and sometimes your forebears and children) were forever cursed. In contrast, a copyright notice is a yellow blinking light at the corner of Purchase and Purloin Streets. Copyright notice or curse? No contest.

According to Drogin, the oldest known book curse appears on cuneiform tablets found in the biblical city of Ninevah. Like today's authors, Babylonian King Assur-bani-pal (668–626 BC) wasn't just concerned with protecting against theft but receiving credit for his work. Droit Moral is the French term for moral rights, which includes the author's right to defend the integrity of their work and the use of their name. King Assur-bani-pal personal cuneiform tablet collection bore the following warning: 

"Whosoever shall carry off this tablet or shall inscribe his name on it, side by side with mine own, may Ashur and Belit overthrow him in wrath and anger, and may they destroy his name and posterity in the land."

King Assur-bani-pal

Clearly, the profound fear of being forgotten loomed as large in Babylonia as in Hollywood today. Removing the name of a king from a cuneiform tablet meant he never existed. Much the same can be said for failing to credit a screenplay writer whose livelihood (and footnote in history) depends on the works that bear their name.

Whether a curse or a copyright notice, these admonitions are powerful starts to the reading experience. Where does the power come from? Fear.

"May whoever destroys this title, or by gift or sale or loan or exchange or theft or by any other device knowingly alienates this book from the aforesaid Christ Church, incur in this life the malediction of Jesus Christ and of the most glorious Virgin His Mother, and of Blessed Thomas, Martyr. Should however it please Christ, who is patron of Christ Church, may his soul be saved in the Day of Judgment."

Before Gutenberg invented the printing press, between the 5th and 13th centuries CE, books were precious handwritten objects coveted by the wealthy elite and marauding Norsemen. The heathen marauders targeted Christian churches, killing defenseless monks and hauling away intricately detailed illuminated manuscripts containing equally detailed book curses. As the monks of early Christian Ireland discovered, a curse is unlikely to have a persuasive impact if the marauder can't read. But if you use a curse and a chain with a heavy rod to lock your psalter to a desk, you are more than twice as safe as you would be with either of them alone. 

In the 16th Century, book curses underwent a change, becoming more secular, foreshadowing the birth of copyright as a device to secure the sale of copies and protect the livelihood of authors and publishers  German renaissance artist Albrecht Dürer invoked the wrath of the crown, not god, declaring in 1511:

Dürer's Engraving of  Erasmus

"Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximilian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger."

A copyright notice threatens economic harm, while the strategy behind the black art of the curse is to attack the infringer's mind  Dürer's transitional curse succeeds at both tasks. 

Conclusion 

 

 

Tensions between copyright law and freedom of speech aside, magic offers an intriguing pre-movable type solution to a 21st Century dilemma. On January 1, 2024, Mickey Mouse will pass into the public domain. With Disney unable to extend the copyright term, one can imagine Mickey bedecked in a magic blue hat with white stars and a crescent moon conjuring up an army of battling brooms to delay the move into the public domain. Unlike a copyright, a curse has no expiration date.  

©💀 2016 - 2022 Lloyd J. Jassin  All Rights Reserved. 

Disclaimer & Curse: This article is not designed to give specific advice concerning specific circumstances  Readers are strongly cautioned to consult an attorney or practitioner of the dark arts  This article may be reproduced in whole for non-commercial purposes, provided the author and website are credited  If you violate these term you will be seized by the neck like a bird, your head cranked off, and your carcass hung up to drain*.

*Adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.

Lloyd J. Jassin is a publishing attorney and head of his private practice, concentrating on legal issues affecting authors, literary agents, publishers, and composers  He began his career in book publishing, working for companies such as Prentice Hall / Simon & Schuster and St. Martin's Press in publicity and marketing, which may explain his affinity for trademark law  He's the coauthor of The Copyright Permission and Libel Handbook (John Wiley & Sons). 

Contact:   Law Offices of Lloyd J. Jassin, The Paramount Bldg., Floor 12, 1501 Broadway, NYC, 10036, (tel.) 212-354-4442; (email) jassin@copylaw.com,  Follow on Twitter: http://twitter.com/LloydJassin

Resources

The 'Weird Tale' Behind the Malcolm Ferguson Book Plate 
The Story of St. Columba: A  Modern Copyright Battle in Sixth Century Ireland
Books in Chains by the Late William Blades (1892) (full text version)
Biblioclasm:  The Mythical Origin, Magic Powers & Perishability of the Written Word (Rowman & Littlefield) by Marc Drogan.
Books and their Makers in the Middle Ages  (Putnam) by Geo. A. Putnam
Questionable Utility of Copyright Notice: Statutory and Nonlegal Incentives in the Post-Berne Era by TP Arden - Loy  U. Chi  L.J. 1992

Threatening Bookplate via 'Confessions of a
Bookplate Junkie' Blog