Did defendant broke copyright?

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  • Consider the following hypothetical situation and answer any part of the multi-part question.

    The defendant has a complete set of Batman comic trading cards with interesting Batman facts. He created a website that parapharsed (or summarized) the info -- one web page for each card. The website did attributed the information as being from the trading cards. The main intent of the site was to generate revenue via Google ads. The defendant's defense is that he did not copy the info word-for-word.

    1) Do you think the defendant broke copyright law? I understand, that only a judge can decide. But take your best guess.

    2) If the defendant loses in court, what is the penalty that he will face. Jail time? Or monetary amount equal the Google ad revenue received?

    3) If the defendant created a "trivia game website" where he came up with the questions and the multiple choice answers based on some (but not all) of the information gain by reading the cards, would that have be okay?
  • Hello, Philoseeker.

    You pose some interesting questions. I am not a legal specialist, but I can share the following information, which I hope is helpful.

    Here are some thoughts about the general situation. Sometimes an adaptation of copyright-protected work is defensible in that it is fair use. Fair use depends upon four factors. I’ve outlined them here with my personal comments about how they may apply in this instance.

    1. Purpose of the use. This factor considers how the material is used. Generally, using copyright-protected work for nonprofit purposes such as scholarship or reporting are more likely to be considered fair use. In this case, however, the purpose of the use is to bring ad revenue to the defendant.

    Also, highly creative and transformative uses are more likely to be considered fair. I haven’t seen the material in question, but if the defendant only changed a few words from the Batman cards here and there, this may not qualify as transformative or creative.

    2. The Nature of the material used. In general, factual work is more conducive to fair use. Creative and/or unpublished works are less conducive to fair use. In this case, the trivia questions seem to be factual.

    3. The Amount of the copyrighted work used in the new work. The larger the portion of the original work used, the less likely a use will be considered fair. If a portion of a work is used, a court may also consider whether that portion is the “heart” of the work, or truly critical to the whole. I’m not sure how a court would consider this factor regarding the Batman site. Maybe it would consider the percentage of the original deck of trading cards used on the website.

    4. Effect on the market for the original material. In other words, does the new use of the work (the website) diminish the market for the original product? If the website would potentially reduce the sales of the trading cards, this factor is not in the defendant’s favor.

    It is important to note that these factors may not all be weighed equally. In particular, the fourth factor is given a lot of consideration. For a more detailed explanation of fair use, I recommend the following website: http://www.copyright.iupui.edu/highered.htm#four. Also, a helpful fair use checklist is available at http://www.copyright.iupui.edu/checklist.pdf

    Finally, just because the defendant included an attribution, the adaptation is not necessarily free and clear.

    About your specific questions:

    1. I cannot say.
    2. I cannot what a guilty verdict in this case might bring. Penalties for copyright infringement can include the following:

    Actual damages and profits
    Statutory damages (In the case of willful infringement, costs can range from $750.00 to $30,000 and up to $150,000.)
    Attorney’s fees
    Injunction (a demand to cease activities and pay money)
    Impoundment (destruction or disposition)

    3. If the defendant creates a trivia game based upon the card questions, my impression is that the questions that the defendant invents are fine to post online. Complications arise with the material borrowed and /or adapted from the original cards (as outlined above).

    None of these answers are definitive, but I hope this information is helpful.


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