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| Chilling Effects Clearinghouse > Copyright > Notices > No More Free Ride of Our Dolls (NoticeID 519, http://chillingeffects.org/N/519) | Location: https://www.chillingeffects.org/copyright/notice.cgi?NoticeID=519 |
November 20, 2002
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[Private]
Monsterpatterns.com
Livonia, MI, 48153, USA
Sent via: FAX
Re: Infringement of Simplicity Pattern's Intellectual Property and Interference with Cont
We represent the Simplicty Pattern Co., Inc ("Simplicity") the owner of copyrights for thousands of dres, doll and craft patterns (hereinafter the "Copyrighted Works"). Simplicity has been quite diligent in registering the copyrights for its patterns and packaging for many decades, and accordingly it has Federal copyright registrations for all of the patterns it has sold. Simplicity recently learned that you have been posting images of Simplicity, New Look and Style patterns for sale on your website at monsterpatterns.com. In addition, we understand that you are usnig Simplicity's trademarks (e.g., Simplicity, New Look and Style) and trade dress in a manner that will confuse consumers into believing that you are an authorized seller of Simplicity patterns. Simplicity has never given your company permission to copy or post images of any of its patterns; accordingly, we write to insist that all such activities cease immediately. Your copying, advertising and sale of our client's copyrighted material constitutes copyright infringement in violation of the Copyright Act, specifically 17 USC 501. Such infringement subjects you to an injunction and statutory damages up to $30,000 per infringement and attorney's fees under 17 USC 502-505. In addition, we believe that you are obtaining patterns from authorized dealers who have a contractual obligation to destroy, rather than sell, the patters it has beel selling to you. Simplicity's basic dealer agreement makes clear Simplicity dealer's obligations to destroy and not sell discontinued or overstock patterns. If you continue to encourage sales in violation of these agreements, Simplicity will consider its options to seek redress under tortious interference and unfair competition laws. On behalf of our client, we demand that you immediately stop all infringing activities including, but not limited to, any use of Simplicity trademarks or reproduction of pattern packaging and any posting of the Copyrighted Works on monsterpatterns.com. If you wish to resovle this matter, you must immediately: 1) remove all Simplicity pattern images from monsterpatterns.com and any other website through which they may be accessed; 2) identify your source(s) of Simplicity patterns; 3) enter into an agreement whereby you formally agree to cease and desist from all tortious interference with Simplicity contracts, copyright infringement and trademark infringements, and 4) provide us with evidence of your compliance with this agreement If we have not heard from your prior to close of business December 23, 2002 we will advise our client of its alternative copyright remedies, including its remedies under the Digital Millennium Copyright Act. In addition, we will contact your webhosting company and demand that they comply with their obligations under the DMCA not to facilitate infringement by continuing to provide web access to infringing material. I look forward to your prompt response.
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Question: What rights are protected by copyright law? Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are: (1) the right of reproduction (i.e., copying), The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright. Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases. Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement. The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution. Question: How can I find out whether a work has a registered copyright? Answer: Works are copyrighted as soon as they are "fixed in a tangible medium of expression," but some legal rights and remedies are available only if the work's copyright is registered. To find a copyright registration, you may search copyright records at the Copyright Office website, but be aware that not finding a match does not mean the work is uncopyrighted. Question: What can be protected as a trademark? Answer: You can protect
Question: What is "trade dress"? Answer: At one time the term referred only to the manner in which a product was dressed up to go to market e.g. a label, package, display card and other packaging. Today, the term refers to the totality of elements in which a product or service is packaged or presented. These elements combine to create the visual image presented to customers. This "trade dress" is capable of acquiring exclusive legal rights as a type of trademark---or, identifying symbol of origin. All aspects of appearance are potentially protected as trade dress Question: What kinds of things are copyrightable? Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium. Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV. The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable. Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however. Question: What is copyright infringement? Are there any defenses? Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above. The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:
The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use." Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody. Question: Where can I find the text of the U.S. Copyright Act? Answer: The federal Copyright Act may be found at http://www.loc.gov/copyright/title17/. Question: What are the possible penalties for copyright infringement?
Answer: Under the Copyright Act, penalties for copyright infringement can include:
A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) Question: What is tortious interference with a business relationships? Answer: Tortious interference with a business relationship is a claim by a contracting party against a third party for unjustified interference with the contractual relationship. To establish a claim for interference with contract, a plaintiff must plead and prove: (1) a valid and existing contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. Question: What is trademark infringement? Answer: Although different courts have different tests, the central concept is confusion in the marketplace. The law protects against consumer confusion by ensuring that the marks on the same or similar products or services are sufficiently different. A plaintiff in a trademark infringement case generally must prove 1) it possesses a valid mark; 2) that the defendant used the mark; 3) that the defendant used the mark in commerce, "in connection with the sale, offering for sale, distribution or advertising "of goods and services; and 4) that the defendant used the mark in a manner likely to confuse consumers. Question: How likely is copying to be found (by a court) and what are the possible remedies? Answer: As mentioned in the legal introduction (see "Is there an infringement?"), a plaintiff must meet certain requirements in order to show that a FanFic author copied protected expression. In order to prove copying, it must be shown that the fan fiction author copied the work (either through direct or indirect evidence), and some of the copied elements are protected and that the "audience" of the work would also find similar elements. Since FanFic authors generally do not deny that characters and settings are borrowed ("copied"), as seen in their disclaimers, it is likely that copying will be found. Then you must raise the defense of fair use. What happens if I lose the case? If the court finds that you unlawfully copied, it has several possible options. First, and most likely, an injunction could be granted to prevent the author from publishing and distributing the FanFic. The infringing materials could even be destroyed. The court also has the power to award monetary damages. The amount of damages would depend on the lost revenue suffered by the copyright owner and possible profits earned by the FanFic author. Generally, the loss of revenue is rare since FanFic does not draw audiences away from the original; rather, FanFic often serves to enhance sales of the original work. And if FanFic is not for profit, then it is unlikely that the author will have any profits to report. Since there is seldom lost revenue and profits, plaintiffs will often go for "statutory damages." This award can be between $200 (innocent infringement) and $100,000 (willful infringement) for each work infringed. Question: What is the Digital Millennium Copyright Act? Answer: The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to "circumvent" a technological measure protecting access to or copying of a copyrighted work (see Anticircumvention (DMCA)). Another part gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures (see DMCA Safe Harbor). |
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