Copyright Law Blog

A San Diego and Palm Springs California Literary and Publishing Attorney Looks at the Harry Potter Case Ruling and Copyright Infringement Law

July 10th, 2009 at 06:39pm Under copyright infringement

If you are a writer, a publisher, a California copyright attorney, a literary agent or lawyer anywhere from Corona del Mar, Rancho Mirage, San Diego, California Orange County, CA, Los Angeles, Malibu, La Jolla, Del Mar, Encinitas, Carlsbad, Oceanside, San Marcos, Vista and Escondido or the cities of Huntington Beach, Yorba Linda, San Clemente, Buena Park, Anaheim, Santa Ana, Costa Mesa, Irvine, Newport Beach, Laguna Beach, and Laguna Hills, Santa Barbara, San Luis Obispo, Buena Park, Temecula, Indian Wells, La Quinta, Palm Springs, or Palm Desert, you will be interested in a recent case involving the Harry Potter author, J.K. Rowling. This is an important decision for writers, copyright attorneys, and literary lawyers everywhere. 

In September 2008, a New York judge handed down a decision in favor of author J. K. Rowling and Warner Bros. who own the film rights in the Harry Potter books, in a literary and copyright law case involving a fan website that was planning on publishing a reference book on the Harry Potter saga.

What the ruling determined was that the reference book simply copied too much of the Rowling books to be considered fair use. The fact that what was copied was creative material as opposed to factual material, also hurt the website’s case as creative material enjoys a higher level of protection.

What the ruling does is to reiterate the rule that for a derivative book to enjoy the fair use protection under the law, it must be very transformative. It must create something else. Instead, the judge found that the reference book copied Rowling’s distinctive style and words in excess of what would otherwise be legitimate to create a reference guide.

The ruling does nothing to dilute the right of parody or literary criticism to be protected by the fair use doctrine. Rather, the ruling may elevate the importance of the “market impact” factor in the four part standard used by judges in evaluating fair use.

Those four factors are first, the purpose and character of the use (is the new work transformative into something different – in this case use of material from two companion reference books of Rowling made the website reference book less transformative). While another part of this factor is whether the use is commercial or noncommercial, most uses are for profit. Another part of this factor is whether the infringer acted in good faith or not.

The second factor is the amount and substantiality of the use, i.e. whether the amount of the use by the infringer is reasonable for the transformative purpose. Here, apparently, it was not.

The third factor is the nature of the copyrighted work, creative works being given much greater protection than factual works.

The fourth factor is the harm to the market of the original work by the infringing work. Here the court found that while the website reference book might not harm the market of the Harry Potter novels, it might very well harm the market of Rowling’s companion books.

Consequently, the New York judge issued a permanent injunction against publication of the website reference guide. The decision may be appealed and it is possible if the website reference book were edited, it might pass muster. But in this copyright lawyer’s opinion, the success of an appeal or an edited book to pass muster as being fair use is unlikely under these circumstances and as a result of this ruling infringers in California and the U.S. will now have an even harder time trying to make a profit off of another writer’s work.

If you have a publishing, literary, or copyright infringement law issue in San Diego, Newport Beach, Irvine, Orange County, La Jolla, in the Inland Empire, Los Angeles, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your Malibu Copyright Lawyer and your Palm Springs and San Diego Publishing Attorney. Be sure to hire a California law firm with literary and copyright infringement law experience who can serve areas such as Los Angeles, Palm Springs, Palm Desert, Anaheim, Irvine, Beverly Hills, Malibu, Newport Beach, Carlsbad, Corona del Mar, Laguna Beach, Huntington Beach, Santa Ana, Rancho Cucamonga, Ontario, Fullerton, Del Mar, San Diego, Orange County, San Luis Obispo, Buena Park, La Jolla, Oxnard, Ventura, La Quinta, and Santa Barbara so you are properly represented and get the compensation you deserve.

If you have a publishing or copyright law issue of any kind, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn how we can assist you.

La Quinta, Garden Grove and Corona Del Mar California Copyright Lawyer Looks at Copyright Infringements in Conversations

July 10th, 2009 at 12:40pm Under copyright infringement

No matter where you live or try to make a living in Southern California, from Westminster and Mission Viejo to Murrieta and Temecula, from San Diego to Orange County, from Fullerton to Fontana, from Irvine to Anaheim and Rancho Cucamonga to Ontario, from Palm Springs to Indio, to La Quinta, Garden Grove and Corona del Mar, the law is the same for everyone because copyright law in the U.S. is governed by international treaties and administered by the Library of Congress.

While everything you write down is automatically protected by copyright treaties that countries like the U.S. have signed, there’s a reason why the same does not apply to words you speak. Otherwise, this would be the result in cities such as San Bernardino, Chula Vista,  El Cajon, Fontana, Moreno Valley, Garden Grove, Palmdale, Victorville and even Santa Monica.

Children at school would face this dilemma:

“You hit me harder than I hit you,” one child would say.

“No, you hit me harder than I hit you,” the other would reply.

“You can’t say that,” the first child would say.

 ”I already have that phrase copyrighted. You just infringed my copyright. You owe me big time.”

“You just infringed my copyright on ‘You owe me big time,’ the second child might respond. “Now you’re in big trouble.”

“But you just infringed my copyrighted phrase, “Now you’re in big trouble,” the first child might respond. I said that in second grade.

“Just how many times have you said my phrase?”

At this point, the second child would be wise not to say anything further before talking to an attorney.

A whole law firm of lawyers would probably have to be called in, the school might be named as a defendant for not warning the school children not to infringe other children’s copyrighted phrases, and its very possible that parent’s fortunes could be at risk if their children were not insured against copyright infringements.

In bars and nightclubs the results could be even more disastrous.

“What’s a nice girl like you doing in a place like this?” a man might ask a woman.

At which point the woman would probably start calling an attorney on her cell phone who would notify the man of how much he would need to pay for using that line.

If the man followed up his initial approach with, “You look familiar. Haven’t I seen you before?” the damages he would have to pay to settle the copyright infringement case would be double.

Even lawyers would not be immune to such results.

Every time a lawyer stood up in court and uttered the usual “Objection,” damages would have to be paid to someone.

The jury member who announced to the court at the conclusion of a case, “Not guilty, your honor,” would also have to fork out some money.

While the words you write down may be copyrighted, individual words and common phrases are not owned to the exclusion of everyone else.

What is protected by copyright are literary works, i.e. books, music, plays, even advertising. While it is true that a slogan that can be used in advertising and those advertising materials can be copyrighted, the slogan may also be trademarked for use on products. However, the owner of a trademark may not sue others for using that trademarked phrase in daily conversation.

If you have a copyright or intellectual property matter in Orange County, San Diego, in the Inland Empire, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your La Quinta Copyright Lawyers, and Corona del Mar and Newport Beach Intellectual Property Attorneys. For this reason, be sure to hire a California law firm with copyright lawyers who are ready to serve you in areas such as Garden Grove, Corona and Santa Monica so you are properly represented when you need to be.

If you have an intellectual property matter and need to know your rights, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn about your rights and options. You can also call us to speak directly to Sebastian Gibson on the phone about your legal matter.