discuss: Limits on doc licensing's significance
Subject:
Re: [discuss] Limits on doc licensing's significance
From:
Rick Moen ####@####.####
Date:
6 Oct 2008 01:18:08 +0100
Message-Id: <20081006001805.GA26478@linuxmafia.com>
I wrote:
> And there is a profound lesson for computerists, hiding in that
> scenario, about copyright: A new work might be written with literally
> not a single word in common with an earlier one, and yet nonetheless
> be ruled to infringe its copyright.
There was a famous court case in 2001-2 that illustrates this point:
Someone named Alice Randall wrote a parody called _The Wind Done Gone_,
telling a plantation slave's view of the events in Margaret Mitchell's
rather awful but remunerative 1936 melodrama, _Gone with the Wind_.
Randall carefully avoided reusing not only the entire text of Mitchell's
opus, but even found ways to skirt around the names of Mitchell's
characters, the names of the two plantations, and so on. Mitchell's
estate nonetheless sued for copyright infringement.
The case got as far as an injunction against Randall's publisher, which
then was vacated by a higher court pending trial, but the case was never
heard to a conclusion, because it was settled (and thus dropped) on
terms where Randall's publisher agreed to pay an undisclosed gift to
Morehouse College in Atlanta, a school historically founded for blacks,
and Mitchell's estate ceased opposing publishing of Randall's book.
The interesting thing was that everyone seemed to agree that Randall
_had_ copied copyrightable "elements" from Mitchell's potboiler -- even
though they had zero text in common -- and debate centered on whether
Randall's work should enjoy immunity from copyright litigation _anyway_
on grounds of being a (legally protected) parody. (Fair-use parodies
are permitted to borrow otherwise copyright-guarded elements, but only
enough to "recall or conjure up the original", and must be
"transformative" in the way those elements are used.)
Mitchell's estate alleged that (among other things) Mitchell's
"core characters, character traits, and relationships", "famous scenes
and other elements of the plot", and "verbatim dialogues and
descriptions " were copyrightable in the creative mix of characteristics
that Mitchell designed into them, and that Randall was wrongfully
copying those elements even if she avoided voicing their names. Had the
case proceeded, they apparently _would_ have won that point, leaving the
major legal question whether Randall's fair-use parody defence was
sufficient.
A legal analysis: http://www.ivanhoffman.com/seinfeld.html
