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Other >> Copyright Forum >> patent or copyright?
(Message started by: brad on Dec 18th, 2005, 3:02am)

Title: patent or copyright?
Post by brad on Dec 18th, 2005, 3:02am
I wanted to make flash cards relating to a specific subject.  I recently found there is one set of flash cards on this subject(the site says "patent pending"), but the material that I will be using is completely different.  What category does this fall under? Also,  if I am allowed to then create my own flash cards, how protected am I, and what path do I follow to protect myself?

Title: Re: patent or copyright?
Post by Isaac on Dec 19th, 2005, 8:56am
If by flash cards you mean, opaque cards with a question on one side and facts on the other, it seems highly unlikely that a utility patent could cover such an invention.  If the cards had a distinctive ornamental appearance, perhaps they might be the subject of a design patent.   Such a design patent could probably be worked around.

It is possible that the subject matter in question might be protectable by copyright if the subject matter is not factual.  For example in one case copyright holders of a TV show were able to prevent distribution of a game based on trivia from the show.


Title: Re: patent or copyright?
Post by JSonnabend on Dec 20th, 2005, 7:39am

Quote:
For example in one case copyright holders of a TV show were able to prevent distribution of a game based on trivia from the show.

That's an intersting one.  What case was that?  11th Cir., perhaps? ;)

Title: Re: patent or copyright?
Post by Isaac on Dec 20th, 2005, 8:12am
Second circuit actually...

Castle Rock Entertainment v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998 ).

Involved a book which presented a Seinfeld Show IQ test to evaluate a person's knowledge of "facts" from the TV show.

Hmm... if you use the number "8" next to a parenthesis, the forum software converts it to a smiley.  



Title: Re: patent or copyright?
Post by JSonnabend on Dec 21st, 2005, 7:38am
Ah, I misunderstood.  I was imagining a scenario where someone took the questions from Jeopardy, for instance, and worked them into a different game.

I believe the case was from 1998), not 1998.

- Jeff

[edit]BTW, the Castle Rock Case is, IMHO, wrong.[/edit]

Title: Re: patent or copyright?
Post by Isaac on Dec 21st, 2005, 8:08am
I don't know what year you were referring to because your post has a smiley replacing the final digit. All the hits I get on google show that the case year is 1998

I would have thought that a fair use defense ought to have justified the defendant's use in Castle Rock, but fair use decisions are generally easy to second guess.


Title: Re: patent or copyright?
Post by Mark McCormick on Dec 21st, 2005, 2:21pm
I believe the courts ruled in Seinfeld  favor because it was a market that Castle Rock could potentially exploit in the future.  The courts said the copyright owner controlled potential future markets that it has not yet exploited.  I had this in a copyright class this year.

Title: Re: patent or copyright?
Post by Isaac on Dec 21st, 2005, 4:18pm
The affect on a potential market is certainly relevant to one of the statutory factors not supporting fair use, but the Supreme Court has said no single factor, not even commercial use is dispositive (Acuff Rose).

Four statutory factors, with no statutory guidance as to how they ought to be weighed butwith express wording that the factors are not exhaustive.  The only guidance is to do equity.   Given that to work with, predicting fair use in a situation where there is no close precedent is not an easy game.

Title: Re: patent or copyright?
Post by mactheknife on Dec 21st, 2005, 4:48pm
This is actually very interesting.  I think it's kind of silly to weigh the fourth factor in Castle Rock's favor simply because it would "in general develop or license to develop" a market for quiz games.  I mean, Les Kelly could have licensed to develop or license to develop a market for thumbnails of his photos.  Sony could have developed or licensed to develop Playstation emulation software.  Yet in these instances (Kelly v. Arriba Soft, Sony v. Connectix) the activities of the "infringers" were eventually found to be fair use.  And if I've shot amateur footage of a police beating, I would certainly try to develop a market for its inclusion in newscasts.  What will be interesting is in the Google copyright suits, if a court buys the publishers' "we were just about to license the internet indexing of all our books, but Google beat us to it by a day!" argument.

In addition, the first factor analysis (whether the quiz is "transformative") seems a little mucky to me as well.  The purpose may have been "entertainment," but what was the purpose of Pretty Woman in Campbell?  Academic discourse?  To me, if the Supreme Court can stretch 2 Live Crew's lyrics to be criticism or commentary on the original Orbison work, certainly the 2nd Cir. could have applied the same stretching to a quiz game.

Oh well, whatever.  First set of exams are done.  Going to dinner to celebrate...
;D

Justin

Title: Re: patent or copyright?
Post by Isaac on Dec 21st, 2005, 8:00pm
In Acuff Rose, the Supreme Court never said that the Crew's parody was fair use.  Instead they said treating commercial use as dispositive of the issue was improper.
The raunchy boys music did not really survive the test of time, but they made it into IP law casebooks.

Sometimes it's hard to avoid a cynical conclusion that fair use analyses are results driven.

Title: Re: patent or copyright?
Post by JSonnabend on Dec 22nd, 2005, 7:43am
I think the fair use analysis we've been discussing misses the point.  The trivia book didn't copy anything from the tv show, it was about the tv show.  It's contents were facts, e.g., in episode x, y happened.  I know some may say this is a slippery slope to start down, but whatever line one might draw on this issue should not be drawn here, IMO.

Legal academicians can analyze the Castle Rock case until they're blue in the face -- no post hoc rationalization can fix it.

Isaac, the smiley thing was a joke (i.e., the case cite should have been nineteen-ninety-smile) ;)

- Jeff

Title: Re: patent or copyright?
Post by Isaac on Dec 22nd, 2005, 8:26am
Doggonit.  I thought I might have been missing a joke.  I heard the wooshing sound, but I did not look up over my head.

I think the issue of what constitutes "fact" about a fictional context is a bit elusive.    It might be a fact that the actor on a show actually said something, but a complete fiction that the character said something or that some event described in the show actually occurred.   Was character X actually bewildered about something that the actor knew about well in advance?

I don't think the court got the decision right but I'm not overly surprised that courts in large media centers are able to find law that others cannot.



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