Kick It! Marital Arts, Choreography, and Copyright

Dear Rich: I am writing a martial arts mobile phone app. The app includes text describing the martial arts movements and choreography illustrating the moves. The martial arts forms have been relatively unchanged since the 1970’s. From what I can tell, the movements have been treated like they are in the public domain, without copyright or trademark notices. Is this accurate?

The various martial arts schools use combinations of choreographic moves called "forms" or "kata" that date back centuries. So, most of what you want to use is in the public domain due to old age, and you can perform or duplicate the moves and describe them in your own language. Alternatively, you can use language from a publication that is in the public domain. You're free to use any text or imagery published before 1928. And you are likely free to use text published before 1964 (probably in the public domain). 

Limited ways to express yourself. If there are limited ways to describe a martial arts movement, you have more freedom to use similar language (known as the "merger doctrine"). For example, if there are limited ways of describing a double-leg takedown (defined as a "takedown where you grab the opponent’s legs while pushing their upper body forward, forcing them to fall back.") you would likely be excused for using the same language in your app.

Here are some things to avoid:

• Using text or imagery taken from works published since 1964,
• Taking imagery from a website unless the website provides a Creative Commons license or has dedicated the image to the public domain,
• Using clips from martial arts videos without permission or
• Using the name of any martial arts fighter, martial arts program, or martial arts studio if it implies endorsement or association.

New martial arts schools may claim copyright and trademark rights. For example, American Kenpo, founded by Ed Parker in the 1950s, owns multiple trademarks and copyrighted instructional manuals, books, and audio and visual digital content. Also, remember that although a martial arts studio may claim copyright or trademark rights over public domain titles and movements, that does not always make it so. 

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Why Do I Have to Pay to Use My Own Work?

Dear Rich: I have written regular columns, articles, abstracts and summaries of research that I've done for various publications, most often for the Institute of Electrical and Electronics Engineers (IEEE). Recently I wrote something for a Wiley Encyclopedia in which I included several graphs and figures of my own work that had been included in IEEE publications. When I explored how to request copyright permission from IEEE for this purpose, I found that it could cost hundreds of dollars to do this. This is all material that I generated. Why should I have to pay for permission to use my own work?
We can't confirm or deny that you need to pay for permission to re-sell your work but we can look at some factors that will determine the answer.
Are you "using" the work? The way you framed your question implies that you are using the graphs and figures. You may think this is hair-splitting, but we disagree; we think you are selling Wiley the right to use them. IEEE offers some fairly liberal republication rights to contributing authors. For example, under some IEEE publishing contracts, it's possible for authors to reproduce their work at personal websites, employer websites and at funding agency websites. IEEE also makes it possible for authors to reproduce their works under Creative Commons license. What IEEE seeks to avoid, like many publishers, is your sale of the same material for a competing commercial use.
What's in the figures and graphs? Copyright doesn't protect facts, processes or methods, nor does it protect "works consisting entirely of information that is common property and containing no original authorship." So, assuming your charts and figures consist of publicly-available data, you may be free to re-create those charts, perhaps with minor variations in appearance, and in doing so, avoid any claims of infringement. It's also possible you may be able to defend your wholesale use of the charts (without changes) under a theory known as the merger doctrine. The trouble with these types of claims is that your contract with Wiley may require that you warrant that your work doesn't infringe and there is no guarantee that you will prevail if IEEE brings an infringement lawsuit. In general, your chances of success increase the more simplistic the chart -- for example a simple bar graph or pie chart.
What's in your contract? We assume you were not an IEEE employee and that you contracted with IEEE when you originally sold the materials. (If you were an employee, IEEE would likely own all copyright under work made for hire rules.) We also assume that you've reviewed your contracts to be sure what rights you relinquished. If not, you should do so, now. Publishing contracts vary  and although it's a long shot, it's possible you retained some rights, some rights may have reverted to you, or in the case of decades-old contracts that certain electronic rights were never acquired.

Wants to Copy Website's Terms of Service

Dear Rich: I run a a health and fitness blog. It has come to my attention that a medical disclaimer should be included on my website. These disclaimer appear lengthy and go into a great degree of legal jargon. I would not like to craft my own. Anyhow, if I use the medical disclaimer of another health and fitness blog, verbatim, would this be infringement? In other words, does plagiarizing a medical disclaimer (or any privacy policy, FTC disclaimer, website TOS etc.) constitute infringement? 
Yes, copying terms of service (TOS) without permission is infringement. However, you don't hear of many lawsuits over TOS theft possibly because the copyrights are so "thin" and the origins of so many are murky. That is, it may be difficult for a copyright owner to claim the TOS as an original work of authorship. (There's something strange -- we almost said "ironic" -- about the fact that TOS's prohibit copying yet they are so often, pilfered or cobbled together from various sites, often by lawyers). Another obstacle for someone coming after you is the "merger doctrine," a copyright principle that excuses copying if there are a limited number of ways to express an idea.
Bigger concerns. Even if the threat of infringement does not loom over your website, there's a bigger issue --  your ability to enforce your TOS against an errant user. If you sue someone over a TOS violation, the opposing attorney will want to know the origins of your TOS ... and that's when you have to reveal you nicked it from a competitor's website. It may still be enforceable but a legal shadow hangs over your TOS especially if you copied irrelevant sections or failed to remove names not applicable to your business.  If you want to avoid these potential hassles, there are online TOS generators and some sites such as WordPress and Automattic have made their TOS available for others to use under Creative Commons (CC) licenses. Also, the CC folks have tried to simplify the business of creating a TOS. And of course there are always attorneys prepared to create or customize TOS for your company (or copy them from treatises).
P.S. Dept. Keep in mind that a court is more likely to enforce your TOS if the user has to click to agree.

Student "Help" Site Pilfered My Exam Question

Dear Rich: I'm a college professor in the sciences, and over the years I've written a number of questions to assign to students in my various classes. Some of them I'll re-use in subsequent years. Last night I stumbled across one via Google on a site called chegg.com, a site that exists in part to provide answers to students posting questions. When I contacted them asking them to take down that question, the rep I spoke with conferred with others there and told me that they couldn't, and that the situation was effectively no different than if a student had posted a question directly from a textbook. Despite their poisoning of the learning process, I'm not interested in punishing the site, I just don't want to facilitate any future students taking the easy way out and not learning as much as they could. What options (if any) do I have here? Personally I can just scramble a few facts whenever I re-use a question, but I'm curious about the larger ramifications as this sort of student "help" site proliferates online. I would think that this is a question of copyright violation and that if a major publisher with more legal clout than I were to push, the response would be different. Chegg.com, according to its website, is "all about removing the obstacles that stand in the way of the education YOU want and deserve." We assume one of those obstacles is doing homework and that's why the company -- whose primary business appears to be buying and selling textbooks -- offers homework help (advertised to get you better grades and help you "get ready for the real world"). How true!
What they said. We're confused why the rep -- comparing your situation to a student posting a question from a book -- concluded that there was no reason to remove your question. It's true that many questions don't rise to the level of copyright protection because they're too short or because there are a limited number of ways to express the question (the merger doctrine) -- for example, "What are the primary themes in Jacobean literature?" or "What motivated Dwight Eisenhower to run for president?" But we see no reason why a longer question with sufficient detail -- for example, a bar exam hypothetical -- could not be protected under copyright. This would be true regardless of whether the question was pilfered from you, or written for a textbook.
Your challenge is twofold. You face two hurdles: (1) convincing Chegg that your question can be protected by copyright law (see above); and (2) getting Chegg to remove your question. You may be able to accomplish the latter through a DMCA notice via Chegg's IPR program. After all, according to Chegg's website, "if a professor reviews your notes and reports to Chegg that the notes do, in fact, violate their copyright, Chegg will remove the notes." If Chegg doesn't facilitate the removal, we assume you will find it cheaper to modify your questions than to hire a lawyer and threaten a lawsuit.

Did eBay Steal our T-Shirt Guide?

@dearrichblog Dear Rich - can you weigh in on eBay plagiarizing our guides (see our blog for details)? What can we do? Has eBay changed enough of the text to avoid infringing on our material? Does the fact that we original wrote the first two guides on eBay mean that eBays own the content posted? eBay doesn't own the content you post but the current eBay user agreement states that "When providing us with content or posting content using eBay's Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content, in any media known now or in the future."
That seems to give eBay a nonexclusive right to copy and post materials that you post on the site. That makes sense because eBay doesn't want to get your permission every time it reposts or features content and photos for listings, ads and promotions. However, we're not sure that extends to the right to modify or copy guides. Unfortunately, the user agreement is ambiguous enough for eBay to argue that it has the right to do what it's doing. (Of course this is all premised on the fact that you joined eBay and consented to the user agreement.)
A bigger problem. We think you may have a bigger hurdle than the user agreement. When there are a limited number of ways to express something -- for example how to search eBay for a brand of t-shirt -- copyright law permits a liberal amount of copying (this rule is known as the "merger doctrine"). At the same time, you have no proprietary right to use the brands -- Screen Stars, Hanes, Sportswear, Logo 7, Artex, Trench, Brockum, Giant and Gem -- mentioned in your guide. Yes, their reappearance in the eBay guide proves that somebody had their fingers on your work ... but even if it's plagiarism, that doesn't mean it's copyright infringement (as we discussed in a recent entry).

Can Research Assistant "Borrow" Professor's Ideas?