Friday, July 14, 2017

Chelsea Clinton sued for copyright infringement

The Daily Mail reported that Christopher Kimberley has filed a federal copyright infringement lawsuit in New York claiming Chelsea Clinton and Penguin Random House derived the idea for "She Persisted" from a previous submission by Kimberley.

Although there may be a reasonable transformative use defense, some of the allegations, if proven, may cast some troubling ethical lapses into the public.




The case is in SD NY, docket 17-CV-5107, filed 6 July 2017. The complaint mentions another name for Kimberley, "Christopher Janes."

A copy of the (pro se) complaint is at

Paragraph 13 within "general averments" states plaintiff submitted Volume 3 directly to Jen Loja [President of Penguin Young Readers].
Paragraph 14 asserts Loja did, in fact, read all or part of Volume 3.

Fair use is mentioned at page 4 (of 15) of the copy of the complaint.

One notes:

"Fair use" in the current US copyright law (17 USC 107) includes consideration of

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

**Separately, a 2016 law review ( 69 Rutgers L. Rev. 195 ) notes:

Since 1957, there have been over one hundred stamps depicting historical women and people of color

with footnote:
E.g., H. E. Harris & Co., 2016 US/BNA Postage Stamp Catalog 41-178 (2016) (depicting Lucy Stone, W.C. Handy, Emily Dickinson, Willa Cather, Paul Laurence Dunbar, Susan B. Anthony, Martin Luther King, Jr., Benjamin Banneker, Francis Perkins, Dolly Madison, Emily Bissell, Hellen Keller, Edith Wharton, Dorothea Dix, Pearl Buck, Crazy Horse, Rachel Carson, Sequoyah, Lillian M. Gilbreth, Whitney Moore Young, Edna St. Vincent Millay, Jackie Robinson, Dr. Mary Walker, Scott Joplin, Carter G. Woodson, Mary McLeod Bethune, Abigail Adams, Margaret Mitchell, Julia Ward Howe, Virginia Apgar, Mary Cassatt, Sitting Bull, Mary Lyon, Sojourner Truth, Jean Baptiste Pointe du Sable, James Weldon Johnson, A. Philip Randolph, Ida B. Wells, Marianne Moore, Jan E. Matzeliger, Fanny Brice, W.E.B. Du Bois, Dorothy Parker, Clyde McPhatter, Otis Redding, Dinah Washington, Percy Lavon Julian, Grace Kelly, Patsy Cline, Joe Louis, Clara Bow, Theda Bara, Dr. Allison Davis, Ethel Waters, Nat "King' Cole, Ethel Merman, Bessie Smith, Muddy Waters, Billie Holiday, Robert Johnson, "Ma' Rainey, Ruth Benedict, Dr. Alice Hamilton, Bessie Coleman, Marilyn Monroe, Alice Paul, John Coltrane, Thelonious Monk, Louis Armstrong, Ernest E. Just, Jacqueline Cochran, Dorothy Fields, Count Basie, Benjamin O. Davis, Madam C.J. Walker, Mahalia Jackson, Josh White, Malcolm X, Ayn Rand, Patricia Roberts Harris, Margaret Chase Smith, Edna Ferber, Wilma Rudolph, Harriet Beecher Stowe, Roy Wilkins, Lucille Ball, Langston Hughes, Nellie Bly, Ethel L. Payne, Ida M. Tarbell, Marguerite Higgins, Thurgood Marshall, Zora Neal Hurston, Audrey Hepburn, Cesar E. Chavez, Paul Robeson, Martha Graham, Agnes de Mille, Alvin Ailey, Barbara McClintock, Arthur Ashe, Greta Garbo, Sugar Ray Robinson, Katherine Anne Porter, Judy Garland, Ella Fitzgerald, Gerty Cori, Martha Gellhorn, Bette Davis, Richard Wright, Anna Julia Cooper, Doris Miller, Kate Smith, Oscar Micheaux, Rube Foster, Katherine Hepburn, Helen Hayes, Maria Goeppert Mayer, Barbara Jordan, Romare Bearden, John J. Johnson, Sylvia Plath, Elizabeth Bishop, Gwendolyn Brooks, Miles Davis, Lady Bird Johnson, Rosa Parks, Lydia Mendoza, Ray Charles, Shirley Chisolm, Jimi Hendrix, C. Alfred "Chief' Anderson, Edna Lewis, Julia Child, Joyce Chen, Janis Joplin, Robert Robinson Taylor, Wilt Chamberlain, Maya Angelou, Harriet Tubman, Eleanor Roosevelt, and Marian Anderson on stamps).


As to compilations of quotations:

**from Rand McNally, 591 F. Supp. 726; 1983 U.S. Dist. LEXIS 10279

Quinto v. Legal Times of Washington, Inc., 506 F. Supp. 554, 559 (D.D.C. 1981) (compilation of quotations protected by copyright as "industrious collection")


**from Harney, 704 F.3d 173; 2013 U.S. App. LEXIS 427:

Because facts are discovered, rather than created, they are "part of the public domain available to every person." Id. at 347-48 (internal quotation mark omitted). Compilations of facts, however, ordinarily are entitled to copyright protection, id. at 344, "'limited to those aspects of the work -- termed "expression" -- that display the stamp of the author's originality.'" Id. at 350 (quoting Harper & Row, Publishers, 471 U.S. at 547-48). A photograph that consists of public-domain subject matter may thus be protected from copying because it involves creative expression, but with the protection limited to the work's original elements.


**from Eagle Services, 532 F.3d 620; 2008 U.S. App. LEXIS 14526

Eagle has a copyrighted safety manual. The copyright is a compilation copyright, 17 U.S.C. §§ 101 ("compilation"), 103(b), as the manual consists mostly of quotations from OSHA regulations; the provenance of the remaining text of the manual is unclear. Suspecting that the individual defendants had taken the manual with them when they left to form their own company and had made copies of it, Eagle sent two people to H2O in the guise of prospective customers to request H2O's safety manual, and, sure enough, they were shown copies of Eagle's manual. H2O later prepared its own manual, and other than the two Eagle spies no prospective customer of H2O was ever shown the Eagle manual. Thus the defendants derived no profits from the alleged copyright infringement--or so one would think; but Eagle argued that without a manual, H2O could not provide any services without violating OSHA regulations, and therefore that Eagle should be entitled to recover, on a theory of restitution, all the profits that H2O made in its business before it created its own manual. Eagle acknowledged that it could not prove actual damages and that it was not entitled to statutory damages.
There has been no determination of whether Eagle's copyright is valid. The defendants argue that it is not because little of the material in the manual is original. But while for the most part the manual does just reproduce OSHA regulations, the manual's sequencing of them is original-- [*623] there is not just a single sequence that every OSHA safety manual would have to follow--and there is other text in the manual as well, though it may have been copied from works in the public domain. We shall assume that Eagle's compilation copyright is valid. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 348-50, 357-59, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991); Assessment Technologies of WI, LLC v. WIREData, Inc., 350 F.3d 640, 643 (7th Cir. 2003). The assumption does not affect our decision.


**from Emanation v. Zomba, 2 Fed. Appx. 187; 2003 U.S. App. LEXIS 17146; Copy. L. Rep. (CCH) P28,673; 68 U.S.P.Q.2D (BNA) 1212:

It is a generally accepted truth in copyright law that "facts and discoveries, of course, [p 1215] are not themselves subject to copyright protection," Feist, 499 U.S. at 345 (internal quotation omitted), but that "compilations of facts are within the subject matter of copyright," and were indeed expressly mentioned in the Copyright Act of 1909, and again in the Copyright Act of 1976. Id. In Feist, the Supreme Court [p 190] cited the statutory and constitutional requirement of "originality" to explain the "doctrinal tension" between these two rules - that facts, on the one hand, do not receive copyright protection, but factual compilations, on the other hand, generally do. 6 Id.; see art. I, § 8, cl. 8; 17 U.S.C. § 102(a) (extending protection to "original works of authorship fixed in any tangible medium of expression").

- - - - - - - - - - - - - - Footnote - - - - - - - - - - - - - - -
The definition of "compilation" is found in § 101 of the 1976 Act, which defines a "compilation" in the copyright sense as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship."

- - - - - - - - - - - - End Footnote- - - - - - - - - - - - - -

The "original" element "does not require novelty, ingenuity, or aesthetic merit." Mason v. Montgomery Data, Inc., 967 F.2d 135, 141 (5th Cir. 1992). However, the simple recording or reporting of facts is insufficient to satisfy the "originality" requirement because "the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence." Feist, 499 U.S. at 347. To qualify a work as an "original" work "choices as to selection and arrangement" of facts into factual compilations must be made such that the independent creation of the compilation involves "at least some minimal degree of creativity." Id. at 345 (quoting 1 M. NIMMER & D. NIMMER, COPYRIGHT § 2.01[A], [B] (1990) (hereinafter NIMMER)). For example, in Harper & Row Publishers, Inc., the Supreme Court explained that President Ford could not prevent others from copying bare historical facts from his autobiography but that he could prevent others from copying "subjective descriptions and portraits of public figures." 471 U.S. at 556-57, 563.

See 17 U.S.C. § 103(b) ("The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.").
Note Franklin, 2007 U.S. Dist. LEXIS 89666



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