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View Full Version : A complex and lengthy hypothetical on copyrights


CannyDan
02-25-2010, 02:45 PM
Say there are two organizations sharing similar interests, like anglers’ associations, clubs really. Both of these groups provide advice, help, tips, even classes in casting and lure making. Call them the Alpha Anglers and the Zeta Fishermen. The two groups collaborate on a joint publication filled with all kinds of angling and fishing advice, providing a baseline of information that every fisherman will find useful. Among many other tips and tricks, the work offers advice like: (i) in order to prevent unnecessary break-offs, salmon should be fished for using at least 15 pound test line; (ii) trout fishermen using dry flies should have a minimum 10 foot tapered leader; (iii) to help reduce mortality of broken-off fish, hooks should not be made of stainless steel. And all manner of other seemingly worthwhile advice. They call it the Minimum Angling and Fishing Knowledge (MAFK). They publish it themselves, and sell copies at anglers’ conventions, fishing clubs, and recently via the internet.

Over the course of years the two groups revise, expand and update their collaborative work, eventually producing MAFK 3rd Edition. At this point a regulatory Fish and Game agency decides to implement some of the advice as actual rules. It declares that within its jurisdiction salmon fishermen must use at least 15 pound test line, dry fly leaders must be at least 10 feet long, no stainless hooks are allowed, and other particulars drawn directly from MAFK.

Many fishermen howl “I’ve used 12 pound line for salmon for years with great success”, "Six foot leaders work for me!" and similar complaints. The agency blows them off, tells them “Your own peers offered these Minimums” and denies fishing licenses to any who fail to meet them.

One organization, the Alpha Anglers, says “Great! These things were developed by a group of angling experts, they are intrinsically worthwhile, and all fishermen should be bound to them.” The Zeta Fishermen say “Wait a minute! These were suggestions, offered as helpful advice, not regulatory standards. Lots of fishermen have done things differently for years with excellent success. They should not be legally precluded from exercising their own judgment.” A joint commission of the two groups sets out to solicit input and attempt reconciliation for MAFK 4th Edition.

As volunteer groups often do, the joint commission struggles along for several years, taking input and arguing positions. Meanwhile the Alpha Anglers unilaterally write a 4th Edition, claiming it to be a continuation of the joint work, but praising the regulatory use of MAFK. They offer it to the Zeta Fishermen, saying basically take it or leave it. We are publishing this, and you can either continue to have your name on it, or not.

Zeta profoundly objects. If necessary Zeta is willing to divest itself of MAFK and write its own book, renaming it perhaps Suggestions for Anglers and Fishermen and making more clear the background of choices and opportunities rather than requirements. But Zeta has a large investment in MAFK, was a full participant in its early development, and would frankly like to use much of the material within for its own book. That information, in and of itself, is valuable. Zeta simply desires to make clear to the regulatory authorities the fact that not all fishermen agree with the “minimums” presented in MAFK and that MAFK is not the peer reviewed consensus of the angling community suitable for regulatory use, as the Alphas represent it.

Finally the question(s):

Who holds copyright, one organization, both, or either?
Can Zeta block Alpha from just dropping Alpha from the credits but using the entirety of the work, even though Zeta made significant contributions to the text and Zeta objects to the present direction of intended use?
Can Zeta use the same text in its own book, drop reference to Alpha, and produce its own re-written version explaining its purpose as strictly suggestion and not a blueprint for regulatory action as Alpha desires?

Staale Nordlie
02-25-2010, 03:05 PM
(I am not a lawyer.)

Both organizations own the copyright, and can use the work independently without permission. I'm not sure if they can remove the name of the co-owner (in the US).


Joint Authorship and Ownership
According to the Copyright Act, the authors of a joint work jointly own the copyright in the work they create. A joint work is defined in Section 101 of the Copyright Act as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

***

When the copyright in a work is jointly owned, each joint owner can use or license the work in the United States without the consent of the other owner, provided that the use does not destroy the value of the work and the parties do not have an agreement requiring the consent of each owner for use or licensing. A joint owner who licenses a work must share any royalties he or she receives with the other owners.

Many foreign countries (Germany and France, for example) require that all joint owners consent to the grant of a license. Generally, joint ownership is not recommended because of the complications it adds to licensing worldwide rights. In addition, it is unclear what effect the filing of bankruptcy by one joint owner would have on co-owners.
-- http://library.findlaw.com/1999/Jan/1/241478.html


Also worth noting is that "copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed (http://www.copyright.gov/help/faq/faq-protect.html)". So while the precise wording in the book may (http://en.wikipedia.org/wiki/Merger_doctrine_(copyright_law)) be protected, the facts and ideas are not and can be freely copied by anyone.

anson2995
02-25-2010, 03:05 PM
From your description, it seems clear this is a case of joint authorship -- so both organizations share copyright in the original manual. (I am presuming that it was a collective work, as opposed to distinct sections being written by each group. If so, it's another matter entirely.)

It also seems clear here that the unilateral 4th edition is a derivative work, in which case the Zeta group can exert their rights and block Alpha from publishing. Or vice versa.

It seems here that there are really three issues to be considered. 1) Profits, which are probably minimal in this case and not that important; 2) ownership of the text itself, and the rights to use it in the future; 3) not wanting their name on a derivative text with which they disagree.

This is not at all uncommon in reference publishing and I assume in academic publishing as well. The most prudent course of action might be for the two groups to agree that each can take the text from the 3rd edition and use it in the future however they like, perhaps with a disclaimer that their new versions don;t reflect the views of the other group.

For more details, google "joint copyright"

RealityChuck
02-25-2010, 03:06 PM
Who holds copyright, one organization, both, or either?Either. Or both. It depends on how the copyright was registered (or if it was registered at all).
Can Zeta block Alpha from just dropping Alpha from the credits but using the entirety of the work, even though Zeta made significant contributions to the text and Zeta objects to the present direction of intended use?Depends on who owns the copyright.
Can Zeta use the same text in its own book, drop reference to Alpha, and produce its own re-written version explaining its purpose as strictly suggestion and not a blueprint for regulatory action as Alpha desires?
[/LIST]As you might guess, the answer is in who owns the copyright.

Assuming joint copyright, either can publish an revised version of the book. If Alpha owns the copyright, then Alpha can block Zeta; and if Zeta owns the copyright, then they can block Alpha. Damages are also possible depending on if the copyright is registered.

Ultimately, a court will decide any dispute over who owns the copyright.

CannyDan
02-25-2010, 03:14 PM
From your description, it seems clear this is a case of joint authorship -- so both organizations share copyright in the original manual. (I am presuming that it was a collective work, as opposed to distinct sections being written by each group. If so, it's another matter entirely.)

It also seems clear here that the unilateral 4th edition is a derivative work, in which case the Zeta group can exert their rights and block Alpha from publishing. Or vice versa.

It seems here that there are really three issues to be considered. 1) Profits, which are probably minimal in this case and not that important; 2) ownership of the text itself, and the rights to use it in the future; 3) not wanting their name on a derivative text with which they disagree.

This is not at all uncommon in reference publishing and I assume in academic publishing as well. The most prudent course of action might be for the two groups to agree that each can take the text from the 3rd edition and use it in the future however they like, perhaps with a disclaimer that their new versions don;t reflect the views of the other group.

For more details, google "joint copyright"

Yes, let us assume it was a collective work and no separate authorship can now be determined. And copyright was never registered.

If one or the other party chooses not to be "prudent", what recourse is available to the other?

md2000
02-25-2010, 07:58 PM
According to Staal Nordlie's quote, for ajoint ownership - In the USA, either party can do what it wants; in other countries, (the France and Germany example) both have to agree.

The proviso is of course, that theydon't destroy the value of the original joint work. Not sure how this would play out in fishland. I assume it means things like, for example in fiction, using the original characters for porn or turning them from heroes to villans, thus making the original work less desirable in the market. Not sure how revising fishing rules could be analogous to that, unless you include say, text to explicitly disparage the original work.

Or another example might be, say if the Davin Niven & Woody Allen "Casino Royale" had ridiculed James Bond and made the franchise less desirable. Howevr, it wasn't a collaboration and the public obviously didn't care.

Exapno Mapcase
02-25-2010, 09:37 PM
If one or the other party chooses not to be "prudent", what recourse is available to the other?
This is exactly what lawyers and courts are for.

Or another example might be, say if the Davin Niven & Woody Allen "Casino Royale" had ridiculed James Bond and made the franchise less desirable. Howevr, it wasn't a collaboration and the public obviously didn't care.
The producers formally licensed Casino Royale from the copyright owner. That makes it a completely different situation. It was a collaboration, of course, as all motion pictures are, but I can't imagine how that makes any difference. Whether the public cares or not is also entirely beside the point. In other words, nothing about Casino Royale has any relevance to this situation, or any other that I can imagine since making the franchise less desirable isn't a copyright issue to begin with.

BigT
02-25-2010, 10:21 PM
This is exactly what lawyers and courts are for.

Yes, and answering questions is what this forum is for.

md2000
02-26-2010, 08:10 AM
This is exactly what lawyers and courts are for.


The producers formally licensed Casino Royale from the copyright owner. That makes it a completely different situation. It was a collaboration, of course, as all motion pictures are, but I can't imagine how that makes any difference. Whether the public cares or not is also entirely beside the point. In other words, nothing about Casino Royale has any relevance to this situation, or any other that I can imagine since making the franchise less desirable isn't a copyright issue to begin with.

I realize that the film was properly licensed. (Wouldn't have happened if it weren't).

If you read my post, I was trying to come up with a real-life example of how a work could be valid copyright-wise, but could "destroy the value of the work " If the Casino Royale had really been memorably funny and became a comedy classic (big IF for that movie) would it have made the image of Bond less desirable and marketable as a Mr. Cool Guy With A Gun?

Exapno Mapcase
02-26-2010, 10:12 AM
I realize that the film was properly licensed. (Wouldn't have happened if it weren't).

If you read my post, I was trying to come up with a real-life example of how a work could be valid copyright-wise, but could "destroy the value of the work " If the Casino Royale had really been memorably funny and became a comedy classic (big IF for that movie) would it have made the image of Bond less desirable and marketable as a Mr. Cool Guy With A Gun?

I ask again, what does that have to do with copyright? I think you're confusing it with trademark, in which brand dilution is an issue. No such concept exists within copyright.

anson2995
02-26-2010, 11:29 AM
I ask again, what does that have to do with copyright? I think you're confusing it with trademark, in which brand dilution is an issue. No such concept exists within copyright.

But there is a related issue here, namely that one group does not want the work to be published with their name on it, because they don't endorse the contents. I'm inferring from what the OP has said that this is the central concern, rather than merely ownership of the text.

Exapno Mapcase
02-26-2010, 11:59 AM
But there is a related issue here, namely that one group does not want the work to be published with their name on it, because they don't endorse the contents. I'm inferring from what the OP has said that this is the central concern, rather than merely ownership of the text.

The distinction is that between co-owners and derivative rights users. Nothing that derivative rights users can do can legally detract from copyright. (The property may become more or less valuable in the future, but that is irrelevant to copyright: it's equally true for public domain works.)

Any copyright case gets down to the particular details of the dispute. We don't know them. Any of them, in the legal sense. Hypotheticals are meaningless. The exact nuances of who wrote what, who wants to use what, and who can claim what will probably have to be worked out on a sentence by sentence basis.

Some analogies are extremely helpful for understanding; some aren't. The example from md2000 seems to me to be so wholly irrelevant that it's undermining understanding rather than adding to it.

CannyDan
02-26-2010, 01:39 PM
But there is a related issue here, namely that one group does not want the work to be published with their name on it, because they don't endorse the contents. I'm inferring from what the OP has said that this is the central concern, rather than merely ownership of the text.

Thanks everyone- this is very instructive.

In this instance, Zeta does not want to be associated with regulatory adoption of the specific items in the text, nor with Alpha's stated support for such. Zeta further would be willing to create its own independent version (a 'derivative', if I read the above posts correctly) in which it could emphasize the optional, non-binding nature of the offerings, using basically the same text.

Zeta believes that Alpha will gladly remove Zeta's name from the new edition, but is likely to try to deny Zeta use of the text for creation of that parallel edition. Zeta does not want to abandon the old ("Yeah, go ahead, take our name off it!!") if that would jeopardize its claim to joint ownership of the work.