Re: Legal Gray - Trademark infringement and copyright

Subject: Re: Legal Gray - Trademark infringement and copyright
From: Smokey Lynne L Bare <slbare -at- JUNO -dot- COM>
Date: Mon, 20 Oct 1997 21:48:52 -0400

Perhaps some of this might help you. This past week I just finished
reviewing several books on newsletter 'improvement' concepts. One of the
better books, MARKETING WITH NEWSLETTERS (2nd Edition) (ISBN0963022-4-5)
by Elaine Floyd says it best "....in copyrightland, asking for
forgiveness rather than permission is expensive......statutory damages of
at least $250 per copy have been set. This means that if 2,000 copies of
the newsletter are printed, the copyright owner will be entitled to a
minimum of $500,000....plus legal fees." She is right when she mentioned
that the larger the newsletter circulation, the greater the risk the
editor takes. The question then becomes - do you want to own that?

There is a newsletter site which you may wish to take advantage of:

http://www.newsletter info.com

When I was teaching TC classes, one of the issues we covered was 'fair
use' and copyright outlines for 'works for hire'. If we would do a risk
analysis here, I would say....you opened two Pandora boxes.

First, you have officially done a 'statement of intent'. If they are
fussy now with your request, I can almost guarantee you their 'general
counsel' might be alerted to your intentions. Counsels are retained for
business protection purposes. The dictionary route does not hold up in
court, at least from the case studies I am aware of from teaching. Look
at any PR textbook's case studies. Bottom line is that some company paid
lots of bucks for the TM or the SM, and/or the 'C' (sorry my E-mail does
not have character function abilities).

Second, it is "......expensive to ask for forgiveness rather than
permission." Any time I do a vast, non-educational piece of newsletter
material, I have two forms on hand. A copyright release, signed by the
owning manager of the information, and a completed checklist from the
CCC. Do you have anything similar to these forms in HARDCOPY?

Remember, this also includes when you download from the Internet and put
it into your news without an electronic 'letter of release for reprint.'
If you would like guidelines to show you were 'preventive', contact:

The Copyright Clearance Center
27 Congress Street
Salem, MA 01970
508-744-3350

Hope you are incorporated. Bottom line, you have shown 'intent to
publish,' and that is the key word. If you had not shown 'intent' and a
willingness to fight over an issue which the company has told you they
felt it was infringement of their rights....then..well, that's something
else. Several of us who work with state bar associations as expert
witnesses on various issues, have learned that proving neglect or intent
is the main objective these days. Think about it, can someone state
about your project that you were the least bit concerned about using a
product's name in a title which was copyrighted? Uhmmm...lets
see...maybe 2,500 some?

I also spoke with my neighbor who is an editor and he came up with a
wonderful idea. Why not change the name to: THE REPORT....

.....on (whatever)

Your registration then would be THE REPORT. It would give you allowance
to expand on
'......the (monthly changing topics maybe)'.

Hope this helps and you don't get your paws burned on this issue. CCC
are wonderful folks and can provide you immediate turnaround for all
questions, which you may have about this issue. They are THE SMEs for
copyright issues.


live from the bare's den.......

Smokey


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