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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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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