Copyright Litigation – Infringement vs. Transformative Use!
So say you have written an amazing book or eBook. You give it to one of your friends to review or edit, and then one of their kids picks up the book, likes it, and basically steals most of the content but also tries to make it his own book. You find out the copyright thief sells the book online and so you send the online service provider (ex. Amazon or eBay or Branes & Nobel) a DMCA “take down” notice. They take down the book, but it has already been sold and distributed. You then file a federal copyright lawsuit (let’s assume you had previously registered your copyright in the ebook) seeking monetary damages. The Defendant files a motion to dismiss or an answer claiming the defense that they only stole a little bit of your book and basically transformed your work into a new work. How does a case like this get analyzed? This blog seek to shed some light on this interesting, but all too common copyright law issue.
Is your book copyright federally registered?
In order to file a federal copyright lawsuit, the Plaintiff must be the holder and owner of the Copyrights in question. For example, in Jim Marshall Photography, LLC v. John Varvatos of California, No. C-11-06702 DMR, 2013 WL 3339048, at *5 (N.D. Cal. June 28, 2013) the Northern District Court held (covers San Francisco / Silicon Valley / Santa Clara / Palo Alto area):
17 U.S.C. 411(a) states:
(a) Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b),  no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.
As such, before filing a copyright lawsuit in California or Arizona, we would look to verify ownership and registration.
The DMCA takedown notice
In our example above, you would want to stop the infringer from trying to capitalize off your book by selling it online. This is where a good internet lawyer comes in to help you with a DMCA cease and desist takedown notice to the online service provider where the book is being sold. This may be on more than one website. The DMCA notice is to signal that you believe, in good faith, that someone is infringing your copyrighted works, in this case your eBooks, and that you demand they take it down. If successful, this will temporarily stop the infringer, but it will not be the ticket to lost profits of the Defendant. You will have to take this one step further and either negotiate a settlement or else file a federal lawsuit seeking the infringers profits and alleging willful copyright infringement if applicable.
What is the test for Copyright infringement in California?
In Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990) the 9th Circuit federal court held:
“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.”
The question of whether not the newly created book by the infringer is “substantially similar” to the eBook created by the holder of the registered copyright is not always an easy question, and this is something that can lead to litigation.
What is the “transformative use” defense?
In the above example, the copyright “infringer” might argue that he only took “bits and pieces” of the story line or only took one character, and that their work is thus transformative, or they may argue it is a parody protected by the first amendment. The Courts do recognize the concept of “transformative uses” that take alleged copyright infringement out of the realm of traditional infringement analysis, because the Defendant is arguing they worked up something new and original.
One of the landmark copyright cases of all time discusses the “fair use defense” is Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79, 114 S. Ct. 1164, 1171, 127 L. Ed. 2d 500 (1994). In this case, the United States Supreme Court held:
Recovering the Defendants Profits
Lost profits is an important aspect of a copyright infringement case and a skilled and experienced intellectual property lawyer can help you examine this issue.
Contact a federal copyright infringement lawyer
We accept some copyright infringement claims (particularly those where a Plaintiff or copyright holder is alleging infringement of a book, eBook, song, video, etc.) on a contingency fee basis, or hybrid fee. Contact us for a custom quote by calling (877) 276-5084 or by filling out the contact form below to have one of our copyright lawyers contact you.
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