C3 Patent and Intellectual Property Law

Nov052010 | Steve O'Donnell

Cooks Source’s hilarious copyright infringement

An interesting little story came out yesterday and spread quickly through the interwebs that illustrates some misconceptions about copyright law.

I’ll just point to the original post for the full story. The very short version is that someone posted a story, that story was nicked by a magazine and published, author sends a letter to magazine, editor responds with a hilarious letter about how everything on the web is public domain and that the magazine was doing the author a favor by editing and publishing it.

There are a few reposts floating around, many with comments enabled. The comments overwhelmingly encourage legal action.

There are two things I want to clear up. The first is that putting something on the web does not transform it into a public domain work. That is so silly it’s hard to believe anyone would think that. In fact it’s such an unbelievable statement that it almost makes me question the entire story.

The second problem is that people assume that copyright litigation automatically makes sense in this context. The author did put a copyright notice on the original page, which really doesn’t mean much of anything in the US. Notices aren’t required, copyright “attaches” as soon as something is created. But, if the copyright wasn’t registered with the copyright office, recovery is limited to actual profits/damages and an injunction.

What are reasonable profits/damages here? I can’t say for sure, but I can’t imagine that the original story was generating profits that were impacted by the article’s publication in Cooks Source; I also can’t imagine that the inclusion of that one short piece caused an increase in the magazine’s circulation or in advertising revenue. Monetary damages are probably minimal. An injunction also probably isn’t going to be of much use. The magazine is out, it’s done. An injunction could keep Cooks Source from using the story in a compilation edition, but that alone might not make it worth filing a lawsuit.

If the author did register the copyright with the copyright office, then statutory damages would be on the table and we could be talking about damages in the tens of thousands.

Legal analysis aside, it looks like Cooks Source is taking a beating over the issue on their Facebook page.