Answers to your troubling and tricky legal questions.
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IS 20% ENOUGH?
How much must a change, to avoid copyright
lawsuits?
by Eva-Marie Boyd (June, 2003)
(Note: Eva-Marie has been a practicing attorney for
approximately 15 years. During that time she has been President of
the Orange County Barristers, President of her law school alumni
association, served on the Orange County Bar Association Board of
Directors for seven years and as chair of the Orange County Bar
Association Legal Referral Committee for three years. She was a
panel attorney for California Lawyer for the Arts and has lectured
for that organization on copyright issues.)
It is my hope that this be a true interactive column in which
readers submits their legal questions and I supply researched
answers. While I primarily deal with copyright and trademark issues,
I also work with contracts and general business matters.
To get things started, I will answer the question I am most
frequently asked:
Q. Is it true that I can change an item (whatever the item
may be) by 20% and not be infringing someone's copyright?"
A. NO NO NO!!!!! There just is no such legal bright-light
guideline. These matters are resolved on a case-by-case basis.
Although frequently settled, if the hardest push were to come to the
hardest shove, whether or not there was infringement would be in the
hands of the jury.
A recent example from my own practice: I was representing the
defendant (the potential infringer.) The plaintiff manufactured a
line of fanciful animals on a stick. Each of the items was timely
copyrighted. One was a silly looking bird painted blue and holding
something in its mouth. My client changed the color of the bird to
green and changed the item the bird had in its mouth.
A law suit was filed. Many months of negotiations and legal fees
later, the suit was settled by my client paying legal fees and a
minor royalty.
Did my client change the bird by 20% or enough to pass some
infringement standard?
We will never really know since the matter did not go to trial.
Furthermore, although I would have liked to have had the money it
would have cost to prepare this matter for trial, I believe I acted
in my client's best interest when I urged them to accept the
settlement offer.
(Note: Have any questions regarding copyrights, trademarks,
or other business-related legal issues? Your name will not be used.
Mail, fax, or email your questions to Eva-Marie Boyd, 1160 Catalina
St., Laguna Beach, CA 92651 fax: 949-497-3148; email LAWDDAW@aol.com.)
