(And in case you have trouble getting the link to work, the URL is: http://www.youtube.com/watch?v=-NKXNThJ610)

“All terms mentioned in this book that are known to be or are suspected of being trademarks or service marks have been appropriately capitalized.  [Book publisher] cannot attest to the accuracy of this information.  Use of a term in this book should not be regarded as affecting the validity of any trademark of service mark.”

My initial questions are:

1/ What is this clause trying to achieve?

2/ Is it an attempt to avoid liability for TM infringement or dilution?  If so, I’m not sure how it would achieve that, particularly as it’s framed in terms of the validity of the mark in the markholder’s hands.

3/ How does the reference to ‘appropriately capitalized’ terms have any bearing on the question as to the potential liability of the publisher for TM infringement or dilution, if indeed that’s what the reference is for?

4/ How does it make sense to frame the clause in terms of ‘not affecting the validity of the TMs’?  Wouldn’t the potential problem for the publisher be a concern by a TM holder that its marks had been infringed or diluted in some way, not that they may be invalid?

Has anyone else come across these types of clauses in print or online publications?

(URL: http://seattletimes.nwsource.com/html/businesstechnology/2017372375_tweetingteens30.html in case the hyperlink above isn’t working).

and more particularly this description of prose and poetry writers at parties…

“Fiction writers cluster in the unlit corners of the room, silently observing everybody, including the poets, who are usually having a fine time in the center spotlight, making a spectacle of themselves as they eat the popcorn and drink the beer and gossip about other poets.  Usually it’s the poets who leave the mess just as it was, the empty bottles and the stains on the carpet and the scrawled phrases they have written down on the backs of pizza delivery boxes – phrases to be used for future poems, no doubt, and it’s the prose writers who in the morning usually have to clean all of this up.  Poets think that a household mess is picturesque – for them it’s the contemporary equivalent of a field of daffodils.  The poets start the party and dance the longest, but they don’t know how to plug in the audio system, and they have to wait for the prose writers to show them where the on/off switch is.  In general, poets do not know where the on/off switch is, anywhere in life.  They are usually off unless they are forcibly turned on, and they stay on until they are taken to the emergency room, where they are medicated and turned off again.” (p 108)

Apologies to any poets or aspiring poets out there.  But the passage does remind me of the ‘flash of inspiration’ explanation of creativity – as applied here to poets – with a more ’sweat of the brow’ rationale for the creativity of fiction writers.  I wonder what Baxter would say about copyrighting computer software?

As I mentioned in my comment on Megan’s post I’ve been reading a lot lately about the act of creating literary works.  A number of people have spoken about the creation of literary narratives in the context of Jung’s theory of the collective unconscious and Campbell’s theories of all stories being based on a given set of mythological or classical narratives.  In short, if you subscribe to these theories, you accept that human literary narratives come in a relatively small group of basic structures and what changes from culture to culture and author to author is the expression of the tale.  Thus, one would have to be careful in copyright terms not to protect literary works at too high a level of abstraction for fear of really cutting off major routes of creativity following a particular narrative path.

Over the weekend I was reading a book by Bailey on constructing narratives and his suggestion about what differentiates one narrative from another within a particular genre or story structure is basically the characters, rather than the plotlines.  This got me to wondering whether copyright law should focus more on protecting characters with respect to literary works and less on protecting stories and plotlines.  This would certainly make authors/publishers happy when they are trying to stamp out derivative works – which may or may not be a good thing depending on your perspective.  (As readers of my work will know I kind of like promoting things like fan fiction and fan mashups although I’m also sympathetic to author and publisher arguments about avoiding unjust enrichment in a commercial sense based on others’ characters and situations.  It’s all a – very difficult – question of balance as we all know.)

I remember some years ago when I studied copyright in the UK and Europe, there was much less readiness in those countries to protect characters via copyright than there seems to have been in the U.S. at the same time.  I’m wondering if people have thoughts on the copyrighting of characters perhaps as an alternative to focusing on storylines and given levels of abstraction with respect to the substantial similarity question for infringement purposes.

Obviously copyright is supposed to only protect the expression of a given storyline in any event but from time to time courts take things to higher levels of abstraction when assessing substantial similarity questions.  Does focusing rather on protecting characters create a better balance or not?  And does this approach argue in favor of sector-specific copyright principles?  Obviously you can only protect characters in literary and dramatic works ie works that actually HAVE characters (probably also including video games).  And what of Second Life, avatars etc?  Thoughts, Prof Boyden??

Case Western Reserve’s Journal of Law, Technology & the Internet is searching for a final article to publish in its spring edition. Any scholarly work related to cyber law, intellectual property law or the intersection of technology and the law will be considered. This is a great opportunity to see your research in print and online by the end of the spring semester. The Journal of Law, Technology & the Internet is a recognized student journal at Case Western Reserve University School of Law located in Cleveland, Ohio. Please forward all submissions, along with a CV or cover letter, to the attention of:

dtc22@case.edu | (734) 812-7373

Obviously, this is incorrect on a number of levels, and again illustrates how difficult copyright law is to understand even for people who are professional writers and teachers of publishing (ie outside of law schools).

But I’m interested in how many things the sentence could actually mean, for instance:

1/ If you don’t affix a copyright notice on your work, people may not think you mind if they borrow from it without attribution.  (Either you won’t sue for infringement or you are intending to grant an implied license for others to use the work for any purposes.)

2/ If you don’t register your copyright work, you will have more trouble asserting your copyright in court and will want to register before you commence infringement proceedings.

Anything else it could mean?

I wasn’t necessarily surprised at the number of inaccuracies in the lecture on copyright law.  Obviously, this is a very difficult subject to get across to people of various educational backgrounds and publishing experience.

But one suggestion made by an instructor really stood out for me because it resonates with some questions I have been pondering in recent articles about the role of strict liability in copyright law and the limitations of the fair use defense.  The instructor listed the four fair use factors from section 107, noted that they were very difficult to apply in practice and that each situation is different, and that her best advice to give to writers hoping to avoid copyright infringement claims when borrowing or quoting from the work of others is that if you feel like you’re doing something wrong in your writing, then you probably are.

So that wasn’t a legal opinion and was likely an off-the-cuff comment, but I wonder if it gets at something deeper.  Maybe subjective intentions really should play a greater role in copyright law than they currently do.  In a couple of recent articles, I have suggested moving away from strict liability towards a mens rea standard for copyright infringement at least in certain contexts (unauthorized noncommercial fan video mashups and blogs for example).  Perhaps bringing in a sense of ‘right and wrong’ does make sense, given the impossibility of explaining the contours of fair use to new and emerging writers and artists many of whom are experimenting with new forms and genres, and not making any money from others’ proprietary works.  In fact, much of what is currently licensed from copyright holders should probably be regarded as fair use in any event, but it’s often easier to pay a license fee than to argue about it in court.  Would a more ’subjective’ system help us or cause us greater problems?

Does anyone know anything about IP rights (or lack thereof) in the jigsaw puzzle industry?

My son has recently become enamored with 3D puzzles and is currently working on a world globe like this one.  So I was wondering if the jigsaw puzzle companies typically assert any IP rights in these creations.  Obviously images on puzzles (2D or 3D) may be copyrighted if they are original and I’m sure some puzzle companies pay to license the images from others.  But what about the puzzle itself?  Is it a derivative work of the original image?  Are aspects of puzzles patentable?  I know at least one puzzle company advertises that it uses special new materials for the pieces that make them interlock more effectively.  And 3D puzzles utilize particular methods for putting them together: for example, in the puzzles my son has been playing with, you can construct the puzzle either by image or by number (the backs of the pieces have consecutive numbers and arrows on them so you can use those as a guide for putting it together).  Is that a patentable method of some kind?  Presumably, in countries whose patent systems specifically exclude rules for playing games from patentability on subject-matter grounds (eg in the UK), these kinds of methods would not be patentable.

Anyone have any thoughts about copyrightability or patentability of puzzles?