Copyright Infringement Basics – Poetry and Poem cases filed by Lynda's Lyrics, LLC
I have to admit I got a kick out of reviewing these “Dash Poem” lawsuits. Here is the general gist of it, this gal writes a (pretty cool poem known as the “Dash”). Basically its a poem about how you are born in a certain year (say 1965) and you die on a certain year (say 2050) and on your tombstone there is a dash between these two dates. That dash, according to the poem, represents your life, and you need to make the best of that.
The author of the poem has posted it on her website WITH EXPLICIT INSTRUCTIONS NOT to copy it and use it on your website. She is doing this to try to protect her copyrights. If you copy and paste it you could find yourself receiving a notice of copyright infringement, cease and desist demand letter, or notice of a summons and complaint, or a subpoena from your ISP. But just what are the allegations being made if a lawsuit is filed? Is this legal extortion? Should you pay $7,500 to settle these cases? What should you do in this “dash” part of your life? This blog will share general comments.
Linda Dash Poem cases – sample legal allegations
I am not going to reprint the poem on my website (why?, I don't want to get sued for copyright infringement), however, I will let you know what some of the allegations are in the complaint, as the law and legal pleadings are not generally subject to copyright as they are essentially “factual” allegations, and case law.
That being said, here are some of the allegations I have seen asserted in these types of complaints when an allegation is made that you or your company had no license to reproduce or make derivative works from their poetry (or illegally distribute their works, which may be cited in their demand letter, which some people initially think is a “scam” letter). Here is the case information:
Linda M. Ellis DBA Linda's Lyrics v. Eric J. Aronson and Dash Systems, Inc.
Case 1:03-cv-03086-RWS – Northern District of Georgia. In this case, the Plaintiff obtained a legal judgement against the Defendant in the amount of $150,000 in statutory damages, and $114,000 in attorney fees (260k+ judgement).
Here are some sample allegations:
Ms. Ellis brings this suit for temporary and permanent injunctive relief, damages (including actual and punitive damages, costs, and fees and expenses of attorneys:
Fraudulent acts and omissions concerning Defendants' intended use of her copyrighted poem “The Dash”; “
Unauthorized reprinting of Ms. Ellis's copyrighted poem “The Dash” in Mr. Aronson's book DASH; “
Unauthorized posting of “The Dash” on Defendants' web site http ://www.dashlive.com; “
Unauthorized posting of “The Dash” on Defendants' web site http://www.livingthedash.com ; “
Mr. Aronson's unauthorized creation of the book DASH as a literary work derived from “The Dash”; ” Defendants' deceptive trade practices; and ” Unjust enrichment of Defendants.
In or about early May 2003 Mr. Aronson telephoned Ms. Ellis to ask her permission to reprint “The Dash” in a book that he said he was writing but had not yet tided.
Mr. Aronson failed to tell Ms . Ellis that he was a convicted felon who had served time in prison for, among other things, fraud.
He fraudulently did not tell her that he had already formed a company named Dash Systems, Inc.
He fraudulently did not tell her that DSI had already registered the web sites http ://www. dashlive.com and http ://www.livingthedash.com (both on December 20, 2002).
Mr. Aronson fraudulently did not tell Ms . Ellis that he had already decided to entitle his book DASH.
He fraudulently did not tell her that the subject of DASH would be exactly the same as that of “The Dash”: how to live one's life in a meaningful way that focuses on friends and family, not money and material possessions.
He fraudulently did not tell her that he had devised a coaching/motivational system called “DASH” that the book DASH would describe in detail.
Instead, Mr. Aronson fraudulently described himself to Ms. Ellis as a small-time author who planned to print and sell from home a book that she assumed, based on his misrepresentations, would be his autobiography or a memoir of his life.
Although she believes that criminals can be rehabilitated, had she known that Mr. Aronsun had been convicted of, among other things, securities and wire fraud and served three years in federal prison for his crimes, Ms. Ellis would not have wanted to be professionally associated with such a person and therefore would not have contemplated giving him permission to reprint “The Dash” in his book.
Certainly, she would never have even considered…
At any rate, Plaintiff sued for willful copyright infringement, fraud, deceptive trade practices and unjust enrichment.
Law Firms known to file DASH POEM lawsuits
One firm I saw filing a poetry litigation case is Willcox & Savage, P.C out of Norfalk, Virginia.
Companies that should be careful before using the poetry to avoid litigation
- Motivational speakers
- Life coaches
- Real estate coaches
- Career counselors
- Funeral homes
- Book, magazine, and blog authors
- Videographers, film and movie makers
- Persons with Etsy, Zibbet, Artfire, Indiemade, Big Cartel, Shopify and other online stores
There are many different types of companies that may produce, create, and distribute creative works of art that may incorporate (or seek to create a “transformative” use) of the Dash Poem and these companies should discuss their plans with copyright counsel BEFORE launching their products and investing in their brands. We can help you either seek the proper licensing rights, or help you resolve a legal issue dealing with account termination from one of the above online retail platforms, or dealing with a legal demand letter. If you received a DMCA notice, we can also help.
Is Fair Use a defense?
Yes, fair use is a defense to copyright infringement. However, its not always easy to tell what is a “fair” use, and what is basically ripping into a Plaintiff's protected area. The Courts will apply a four factor test. If it appears you are not really creating anything new and instead just “trading off” the Plaintiff's copyrighted work, this will work against you. This is usually an area that is best left to discussing with legal counsel, again BEFORE you invest in your brand, product packaging, labels, launching a website, etc.
General things to consider if you received a infringement notice letter
1. The letter might offer to provide you with a “retroactive license” if (a) you remove the infringing content from your website or other place, and (b) destroy infringing copies, and (c) pay an “unpaid license fee” (ex. $4,500-$7,500 for example depending upon what the letter says). This may seem like a bargain, especially considering statutory damages for copyright infringement can run from $30,000 to $150,000 for “willful infringement.” However, this amount also seems crazy given that the alleged infringement could be nothing more than posting the poem on your wordpress blog, or on facebook, twitter, pinterest or tumblr for example. At any rate, you can consider complying with the letter, paying the fine and being done with it. That is one option.
2. Another option might be to call an experienced infringement attorney and explore potential defenses and mitigating factors to copyright infringement (such as fair use, first amendment, statute of limitations, “I didn't do it,” or innocent infringement, just to name a few). We have posted on blog on common defenses to copyright infringement. If potential defenses exist, you may be able to negotiate a lower amount than what is being demanded, and have a copyrights lawyer handle working out the terms of the release and settlement agreement (most non-lawyers are not familiar with this process).
3. If you do nothing, you risk a lawsuit being filed in federal court and potentially having a “default judgement” taken against you or your company, opening the floodgate to annoying collection letters and possible garnishment of wages and seizure of assets depending on the amount of the judgment. Plus, your name could be made “public” through the filing of the lawsuit (viewable on Pacer Online Search Tool), which is never something most people want to deal with.
These are some basic things to consider when you receive notice of a legal issue. Since we offer FREE initial consultations to discuss your case, call us at the number below to discuss the pros and cons of your case.
Can you argue that the poem or poetry is NOT subject to copyright protection?
You can, but remember copyright registration really only requires “any creative work fixed in a tangible medium of expression.” This would include simple poems, Haiku's, jingles, and other creative works. That being said, it is not to say that these challenges have not been asserted in federal cases. For example, on motion for summary judgement in the Aronson case, this precise argument was asserted:
“To establish a claim of copyright infringement, Plaintiff must prove:
“(1) ownership of a valid copyright,
(2), copying of constituent elements of the work that are original . Feist Publications v. Rural Telephone Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296, 113 L.Ed. 2d 358 (1991); see also BelISouth Advertising & Publishing Corp . v. Donnelly Info. Publishing Co” 999 F.2d 1436, 1440 (11th Cir. 1993)(en banc), cent denie U.S. – 116 S.Ct. 39,132 L.Ed.2d 323 (1994).
To satisfy Feist's first prong, a plaintiff must show that the work is original and that the plaintiff has complied with the applicable statutory formalities. Lotus Development Cory. v. Borland Int'1 Inv., 49 F.3d 807, 813 (1st Cir. 1995), cert ante _U.S._, 116 S.Ct. 39, 132 L.Ed. 2d 921 (1995).
The Copyright Act specifically provides that:
“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, con principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. See 17 U.S.C. Section 102(b).
In this case, the Plaintiff has admitted that her poem, “The Dash,” is a metaphor for life, and a metaphor is plainly an idea or a concept. Because copyright protection cannot as a matter of law extend to “ideas” or “metaphors,” Plaintiffs claims against the Defendants for copyright infringement based on some alleged use or misuse of “The Dash” must necessarily fail, again as a matter of law. 17 U.S.C. Section 102(b).
The Court did not buy this legal argument, not to say another court might not take an interest in the theory. I found it to be an interesting theory, but the work was apparently more than a metaphor, it was an original way to express the metaphor in verse form.
Contact a poetry & poem litigation law firm
The irony in these cases is some people spend their “dash” in life by protecting their copyrighted works. In this case, which is alleged to be at the heart of their business. And yes, that can involve asking for large amounts of money that would “break the bank” of many people. Such is life I suppose. At any rate, if you received a demand letter or notice of a lawsuit regarding allegedly infringing software, music, books, poetry, poems, songs, jingles, creative works on Etsy or other sites, contact us to review your legal rights. We offer a free initial consultation and in most cases we can structure a low flat rate legal fee (as opposed to shocking legal bills that can result from one or more lawyers “billing on your case” until the case ends). Call us at (877) 276-5084.