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Wednesday, November 24, 2010

Dreaming up an infringement

Deep down in my secret life plan, I have thought that eventually I would write some kind of amazing book that would free me to live the life of a queen. Ok, I know that's completely unrealistic, but I still think about how maybe one day I would write. Sometimes I dream dreams that I think would make interesting stories. Recently, I dreamed a character who went by the name Dirks Bentley, but his friends called him Deke. Completely geeky, I know, but I couldn't help what my subconscious brain told me. But I thought, that's kind of a cool name for a renegade loner type character, and I filed it into my mental file for future writing reference. Then today, I found one of those Starbucks iTunes Pick of the Week cards lying around in my house (where you get a free iTunes download of a song from a featured artist). The artist's name is Dierks Bentley, which means I totally did not dream that name up. Instead, I subconsciously misappropriated it as my own creation. Son of a bitch. Oh well, the man can have it. It's a nice name for a rugged guitar playing type (judging by his picture and not his song, which I've yet to download).

I wonder how often this happens, where we think we've come up with something on our own, but really we just saw or heard something somewhere and some unconscious synapse stored it away to be awakened in dreams. I bet it happens a lot. Many years ago, I was whistling a tune I thought I had made up, but it turned out to be a really well known Gershwin piece. I recently read a copyright case where this very thing happened, but the unfortunate subconscious misappropriator was Michael Bolton, who basically rewrote as his own an Isley Brothers song called "Love Is A Wonderful Thing". I'm sure it was completely unintentional. But the fun thing about copyright infringement is that it's a strict liability offense. That means you don't have to know that what you are doing is infringement in order to be liable for it. Now, there's an issue of proving that you had access to the original work, because copyright law does actually protect independent creation. So if Bolton had never heard of the Isley Brothers, and certainly never heard their song, but he wrote a song that was strikingly similar to Love Is A Wonderful Thing all on his own, he would not be an infringer, and indeed (I think) would get his own copyright in his version. But there was copious proof of access in that case, so Bolton had to pay up.

Isn't it odd, though, that you might completely unintentionally come up with something that you think is original, but really your brain picked it up unconsciously at some point and filed it away for future unintentionally infringing purposes? It is very odd to me.

In case you are wondering, there is a chance to mitigate your liability in damages in the case that you are an innocent infringer. But this requires that you have no notice that there was a copyright, and if somebody marks their work with a copyright notice (something that is NOT required to get protection, incidentally), that counts as constructive notice of copyright, even if you didn't actually see the notice. So Bolton was probably SOL on that case, although my memory fails me as to what damages he was liable for.

Now, you can't copyright a name, although you can get a trademark in a name, which, if famous, could be diluted by somebody else's use of that same name. There is also possibly a common law or statutory right of publicity for famous people, which protects against misappropriation of one's name or likeness or identity for commercial purposes. Those things could have possibly applied were I to use my dreamed up Dirks Bentley.

So, the moral of this story is watch what you write.


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5 comments:

Sovknight said...

Everything we know is made up of things we've seen or learned. It is impossible otherwise. Any story you read, any movie you see, any song you hear, they're all combinations of other stories, movies, or songs. The trick is finding a way to make them unique.

It is frustrating as a write though. I have what I think is a pretty good multi-book story banging around in my head right now. In fact, it's been there for a few years, but lately it has been coalescing into something I really think could be publishable. Here's the thing though: every time I pick up a sci fi book, or see a movie, elements of my story are already there. Someone thought of them before I did. My ideas are different, but the basic principle is the same.

I'll use another example, one that still burns me up to this day. Years ago, there was an actor named River Phoenix. He died a tragic death, but the point is that I fell in love with the name. The difference being, I always thought River would be a perfect name for a girl. I had planned to incorporate this into a story.

Of course, Joss Whedon beat me to it in naming his hero character in Firefly River. So now, even though I'm quite sure I had the idea first (I'm older than Joss), I can't actually use it because people will simply say I stole it from him. I'm still bitter about that one.

I don't think you can dwell on it too much. I also don't think you can actively try to be unique. You just have to write it and go for it, because I guarantee that no matter how unique or different you think your idea is, someone else has probably already thought of it.

Sovknight said...

OK, a quick check has led me to publish a correction. Joss Whedon is older than I am by a few years. (I guess at my age I just assume I'm always older than everyone else until I find out differently) I still maintain that I had the idea first, although I cannot prove it. I think it would be exciting to actually ask Joss about this though, and it would be even more exciting to find out that we both came to the same conclusion by means of the same inspiration. Alas, it still makes no difference. He still beat me to it.

twogirlsandaroad said...

I once thought about writing a short story about two teenagers who try to follow through with a suicide pact except one doesn't die. I was going to simply call it "The Pact".

Jodi Picoult beat me to it - thought it's a boyfriend/girlfriend thing and I have yet to read it.

Sra said...

Sov - I know of River Phoenix. Stand By Me -- good movie. I would say too bad Joss Whedon swooped in and used River for a girl's name, but really I'm grateful he did, because Firefly was brilliant TV. You could of course still use the name -- it's not like Joss has claim on it. But it does lose its novelty.

twogirls - Your idea sounds like an interesting story. I have never read Jodi Picoult, but I just looked up the synopsis to her The Pact. Twisted sounding.

It's a common saying in copyright law that copyright protections expression, not ideas. Ideas are free for the taking by anybody. But separating ideas from expression is frequently not an easy analysis. It's all a matter of degree. Ideas live on a plane of greater abstraction than expression. Two people who form a suicide pact, where only one dies is a pretty abstract idea that could be expressed in many unique ways. It's a story once told, but it could be told again in new ways.

Sovknight said...

Everything we know is made up of things we've seen or learned. It is impossible otherwise. Any story you read, any movie you see, any song you hear, they're all combinations of other stories, movies, or songs. The trick is finding a way to make them unique.

It is frustrating as a write though. I have what I think is a pretty good multi-book story banging around in my head right now. In fact, it's been there for a few years, but lately it has been coalescing into something I really think could be publishable. Here's the thing though: every time I pick up a sci fi book, or see a movie, elements of my story are already there. Someone thought of them before I did. My ideas are different, but the basic principle is the same.

I'll use another example, one that still burns me up to this day. Years ago, there was an actor named River Phoenix. He died a tragic death, but the point is that I fell in love with the name. The difference being, I always thought River would be a perfect name for a girl. I had planned to incorporate this into a story.

Of course, Joss Whedon beat me to it in naming his hero character in Firefly River. So now, even though I'm quite sure I had the idea first (I'm older than Joss), I can't actually use it because people will simply say I stole it from him. I'm still bitter about that one.

I don't think you can dwell on it too much. I also don't think you can actively try to be unique. You just have to write it and go for it, because I guarantee that no matter how unique or different you think your idea is, someone else has probably already thought of it.

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