[Sca-cooks] NPR Segment on Copyright infringement

[James Prescott]

Disclaimer:  I am not a lawyer, but I have been very interested in, and
followed news about copyright cases, since my days in high school.


The case law is, and will remain (thank goodness) hazy.

Copyright is all about creation.  There is always, and always should be,
a fuzzy line between (slavishly) copying something that someone else has
created, and creating something at least somewhat new yourself.

Because this line is fuzzy, it will be decided in specific cases by a
judge (that is, by "case law").


Summary advice:

Always credit all of your sources, and always explicitly quote anything
that you do copy (keeping the quantity of quotations within the limits of
"fair use").  Be very wary of rephrasing someone and then leaving the
implication that it is your own work.  When in doubt, err on the side of
caution.  And regardless of legalities, remember that crediting your
sources is both common courtesy, and also intellectual honesty.


Data point:

A list of telephone subscribers and telephone numbers has been held to be
not copyrightable (in the US) since it does not contain sufficient creative
expression.  See for example http://en.wikipedia.org/wiki/Feist_v._Rural

To quote from that page: << However, the standard for creativity is
extremely low. It need not be novel, rather it only needs to possess
a "spark" or "minimal degree" of creativity to be protected by copyright. >>

Also, some *collections* of information may be protected by copyright,
depending on the judge and the jurisdiction.


Data point:

The way in which a recipe is expressed is protected by copyright, but
the underlying information is (generally) not protected.

So if you see a recipe that looks interesting, and cook it up, and maybe
alter some times and amounts to suit your tastes, and then write it up
without again referencing the recipe that you took it from, then it is
almost certain that you will not be infringing the original copyright,
and in fact will have created your own new work that is in turn protected
by copyright.  Even though the cooked result is the same.  But see also
my earlier advice about courtesy and intellectual honesty.


Data point:

If I translate a recipe from old French, my translation is protected
by copyright.  I've added enough creativity.

If you then translate the same recipe, and come up with the identical
text, your translation is also protected by copyright.

If I sue you for violating my copyright, and if it is just a single
recipe, and if expert testimony says that there aren't many ways of
translating that recipe, and if there is no evidence that you copied
from my translation, then I am almost certainly going to lose that
lawsuit.

If on the other hand I translate an entire book of recipes, and then
you do the same thing, and if most of your translations look suspiciously
similar to mine, and if expert testimony is that the chances of you having
come up with that many of the same phrasings during translation without
having copied them is extremely low, then I am almost certainly going to
win that lawsuit, even though you have added some creativity to the
copying.


Data point:

To go back to an earlier topic, a photograph of an old painting (which
is itself out of copyright) is in another fuzzy area for which there is
not much case law.  To the extent that the judge decides that taking the
photograph required some significant amount of creativity, the photograph
might be protected by copyright.  If the judge decides that there was no
meaningful amount of creativity embodied in the photograph, then the
photograph is not protected by copyright.  See for example (in the US)
http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

This topic also brings up the question of whether or not all photographs
of the original painting would necessarily be (nearly) identical, in
which case there might not be copyright even if the effort required to
make the photograph was be considerable (parallel situation as for
translations from old French).

This area is much fuzzier than recipes, in part because the owners of
the old paintings are sometimes trying to get many of the benefits of
being the copyright holder (which they are not) out of simply owning
the painting.  (Hot button alert).


Data point:

There were two novels published regarding a (mistaken) US nuclear attack
on Russia, "Red Alert" and "Fail-Safe".  Both inspired movies, the
former inspiring Kubrick's "Dr. Strangelove".  The author of "Red Alert"
sued the authors of "Fail-Save" for plagiarism, and it was settled out of
court but in favour of "Red Alert".  While not about copyright, it is a
reminder that even if you are free and clear in the copyright area there
is still the possibility of a suit for plagiarism.

And to come back to my earlier advice, there are always considerations of
courtesy and intellectual honesty.


Thorvald