A Florida Federal Court recently discussed the standard for determining if one manuscript violates the copyright of another. Brian Dodd v. Chris James Woods, Film Ranch International, Inc., 2010 WL 2367140 (M.D.Fla. 2010).
The Underlying Facts
The plaintiff in that case, Brian Dodd (“Dodd”), alleged several causes of action which “arose after Defendant Chris Woods allegedly stole Dodd's manuscript entitled “Anonymity” and gave it to Defendant Film Ranch International, who allegedly used it in producing a film entitled “Brainjacked.”
The Legal Standard for Alleging Copyright Infringement
The Court explained that “[t]o establish a prima facie case of copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’ Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). ‘To satisfy Feist' s first prong, a plaintiff must prove that the work ... is original and that the plaintiff complied with applicable statutory formalities.’ Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir.1996) (citations omitted). A plaintiff may show copying by demonstrating that the defendants had access to the copyrighted work and that the works are ‘substantially similar.’ Oravec v. Sunny Isles Luxury Ventures, L. C., 527 F.3d 1218, 1223 (11th Cir.2008) … .If the plaintiff cannot demonstrate access, he still may establish copying by showing that the works are “strikingly similar .”
“Substantial similarity exists “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”
The Court Determines That the Copyright Violation was Sufficiently Alleged
Under that standard, The Court determined that Dodd had “sufficiently alleged ownership of a valid copyright.” The reason was that “[i]n a copyright action, the similarity between two works must concern the expression of ideas, not the ideas themselves. Oravec, 527 F.3d at 1224. Here, Dodd has only generally alleged that the two works are similar in concept and method, and that a character from Brainjacked has the same name as the main character from Anonymity. As an initial matter, copyright protection does not extend to Dodd's ideas, concepts or methods. See 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea, ... method of operation, concept, ... regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). Therefore, aside from a character from each work sharing a name, (which by itself could not amount to substantial similarity), Dodd has failed to allege any other specific aspects of Anonymity and Brainjacked that are similar.”
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A “Poor-Man’s Copyright” is a Poor Solution for Copyright Protection
Commentary: Beware the “poor man’s copyright.” It is nothing more than an urban legend that if an artist mails himself a copy of a song, story or some other artistic expression that he created, he will be preserving his copyright in it. That procedure is generally insufficient to protect the original creator’s rights.
Instead, the “poor man’s copyright” is useful solely in that it can help establish when the work was created for purposes of proving that it is protected as a common law copyright. While this could help to establish the ownership and creation date (if that is challenged in a later dispute), it is insufficient to maximize the right to recover damages; for that, one would need to have filed a statutory copyright..
In other words, if someone does not register their work as a statutory copyright with the United States Copyright Office, they may still be entitled to a common law copyright. However, without the Federal registration of a statutory copyright, the amount of damages they can collect will be severely restricted.
What is the difference between a common law and a statutory copyright? Essentially, as soon as an expression is recorded in a tangible form (i.e. written on paper, recorded on film, etc.), there is a common law right in and to the copyright of that expression. This does grant the artist the above-referenced exclusive rights as a copyright owner. Unfortunately, this generally provides him with rights without a remedy. The main concern underlying copyright ownership is preventing someone else’s unauthorized usage. Unfortunately, a common law copyright owner cannot generally go to court to sue for copyright infringement unless and until they have a registered copyright. This means that the work is actually registered with the Library of Congress’s U.S. Copyright Office.
However it is not generally recommended that an owner simply wait until an infringement occurs to register his work as it severely limits his rights. We strongly recommend that all works be registered with the Copyright Office at the earliest possible point. This is because there are added rights and protections that inure to a registered copyright holder. These specifically include an ability to obtain statutory damages and recoup attorneys’ fees. However, an owner can only avail themselves of these protections in a dispute if the work was registered when the alleged infringement occurred.
For instance, if a company obtains the script of a film from another company and then produces the film utilizing that script without permission, it has arguably infringed on the rights of the company owning the script. The creation of a film from a script is a derivative work. Since only the copyright holder may create a derivative work without permission, this is problematic. If the script was not registered for copyright infringement when the film was produced, the script owner will generally only be able to recoup damages from lost profits. This can be very difficult to prove and/or end up being minimal. For instance, the film that the infringing company made may not have been profitable. Accordingly, there might be little damages at stake, even though the violation may have been blatant.
On the other hand, if the company had a registered copyright for the script, it could then have the ability to instead obtain statutory damages rather than be limited to lost profits. In addition, with the prior registration, the company may be able to recoup the attorneys’ fees it expends in connection with the prosecution of its infringement case. This can be the difference between the case being a viable lawsuit or not, at least from a cost-benefit standpoint.
The best practice is therefore to obtain a statutory copyright registration prior to any release, promotion or other distribution of a work so that it can be protected before anyone has the opportunity to infringe on the work.
Comments/Questions: ljm@gdnlaw.com
© 2008 Nissenbaum Law Group, LLC
Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com
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