Category Archives: Publishing

The Emerging Copyright and Publishing Law for Writers seminar

This Saturday (May 18) I will be giving a seminar on copyright and publishing law to the Panhandle Professional Writers organization in Amarillo.   The seminar is titled “The Emerging Copyright and Publishing Law for Writers.”  This seminar will be held on Saturday, May 18, 2013 from 10:00 a.m. to 3:00 p.m. at the Amarillo Senior Citizens Center, 1217 S. Tyler, Amarillo, Texas.  Check-in starts at 9:30 a.m.
PPW always inspires me.  I really enjoy being around creative people!  This seminar has been an annual event for PPW for four consecutive years.  The audience participation and questions are always great.
If you are interested in attending, there is a $10.00 charge for the meeting plus an additional $10.00 fee for lunch.  You can make reservations by calling Donna Otto at (806) 681-4181 or by e-mail to  I hope to see you there!  
You can learn more about the program by clicking here:
You can learn more about the Panhandle Professional Writers by going to their website at
Thank you to PPW for making this happen!  

Apparently You CAN Mess with Texas

The Texas Department of Transportation (TxDOT), owner of the mark DON’T MESS WITH TEXAS, recently sought a restraining order against the bookstore chain Barnes & NobleGrand Central PublishingHachette Book Club USAand author Christie Craig over the sale


of Craig’s romantic novel entitled “Don’t Mess With Texas“.  U.S. District Judge Sam Sparks denied the order and cited First Amendment rights, the relatively small amount of revenue involved, and the diversity between good and services.  Although TXDOT owns registration in the slogan for a wide variety of printed materials, books is not one of them.

For more details about this case, read the article, “Judge: Author Can ‘Mess with Texas’ All She Wants“.

Righthaven Copyright Suits and the Fair Use Defense

In a major setback to Righthaven, LLC in one of its copyright infringement cases, a federal judge recently ruled that defendants Kayse Jama and the Center for Intercultural Organizing (“CIO”) engaged in fair use as a matter of law when they posted an article from the Las Vegas Review-Journal (“LVRJ”) that was copyrighted by Righthaven (For background on Righthaven and its business model, see “Copyright Infringement in the Digital Age: Is Righthaven Using the Right Solution?”).
Using the four-factor legal standard for fair use (purpose and character of the use; nature of the copyrighted work; amount/substantiality of the portion used in relationship to the work as a whole; and effect of the use upon the potential market), Judge James Mahan ruled that Jama and CIO met all four criteria necessary to constitute fair use. One of the most surprising aspects of this ruling involves the third factor. Even though the defendants copied the article in its entirety, the judge ruled that the amount was reasonable. Mahan reasoned that because the purpose of the use was to educate the public, and the work was factual, “it would have been impracticable for defendants to cut out portions of the article or edit the article down.”

Regarding the fourth factor of fair use, the opinion also questions whether Righthaven, which is not itself a newspaper and is merely using the copyright to file infringement lawsuites, can claim LVRJ’s market as its own.

It remains to be seen how this ruling will affect the numerous other cases that Righthaven has filed against bloggers who have posted LVRJ content, but if the posting of an entire article can be considered fair use, and if Righthaven does not have an actual market to base its claims upon, this could jeopardize its other claims of copyright infringement.

The JSPIPE: Coordinating Efforts to Secure IP Rights

Intellectual property (IP) is a valuable asset, not only for the producers and creator of this intangible property, but also for the overall economy that benefits from the innovation and creativity this property represents.  However, the value of intellectual property is greatly reduced when
unauthorized users are allowed to exploit this property through counterfeiting, piracy and other illegal activities. Enforcing IP rights in a global economy requires a coordinated effort among a variety of governmental agencies.  The federal government recently announced a plan to improve those efforts.

The 2010 Joint Strategic Plan on Intellectual Property Enforcement (JSPIPE), a 65-page document, was issued in June 2010 by Office of the Intellectual Property Enforcement Coordinator (IPEC).  The JSPIPE coordinates the efforts of eight government agencies: the Departments of Agriculture, Commerce, Homeland Security, Justice and State; as well as the Food and Drug Administration, United States Trade Representative and the Copyright Office.  A total of 33 Enforcement Strategy Action items are organized into six categories: (1) Leading By Example; (2) Increasing Transparency; (3) Ensuring Efficiency and Coordination; (4) Enforcing Our Rights internationally; (5) Security Our Supply Chain; and (6) Building a Data-Driven Government.

Click here to read the entire document.

The Thomas Muffin Affair: More Than Just “Nooks and Crannies”

The Third Circuit Court of Appeals recently heard arguments regarding a district court decision in a trade secrets case between Bimbo Bakeries USA, Inc. (maker of Thomas’ English Muffins) and its former executive, Chris Botticella.  Many in the popular media dubbed this the “nooks and crannies” case, a reference to the


unique texture of the muffin, to which Botticella had access.  In reality, the case involves a much broader spectrum of trade secrets, as well as the enforcement of a confidentiality agreement and the use of computer forensics to detect possible violations of that agreement. 

Until January of 2010, Chris Botticella was Bimbo’s Vice President of Operations for California.  In this capacity, he was one of less than 12 people at Bimbo with access to a variety of confidential and proprietary information, such as product formulas and process parameters, which were stored on a secure website.  Among these trade secrets were the three components (formula, manufacturing, engineering design, and process parameters) that give Thomas’ English Muffins their celebrated texture.  With annual sales of about $500 million, the muffins have been a vitally important item in Bimbo’s product line.  In order to keep these trade secrets from its competitors, Bimbo compartmentalized this information so that only seven people (among them Botticella) had access to all three components.

But Botticella was also knowledgeable about other sensitive aspects of Bimbo’s business operations.  As a company vice president, he was one of only five people with access to Bimbo’s highly confidential cost-reduction strategy for the Western region.  This strategy included information about lines and plants to be closed, new processes to be implemented, new products to be launched, and formulas to be optimized.

In March of 2009, Botticella entered into a confidential agreement with Bimbo as a condition of employment.  Less than seven months later, in September of that year, he received a job offer from Interstate Brands Corporation, the predecessor to Hostess Brands, Inc., one of Bimbo’s three major competitors.  In October 2009, Botticella accepted the position with Hostess, and in December he signed an “Acknowledgement and Representation Form,” stating that Hostess was not interested in Bimbo’s trade secrets, nor would Botticella disclose such secrets to his new employer.

Botticella was to resign from Bimbo on January 15, 2010, but it was not until January 4, 2010 that he informed Bimbo of this intention, and not until about 10:00 a.m. on January 13 that he let Bimbo know that he was going to work at Hostess.  He was then told to stop all work and leave that same day.  But according to the testimony of a computer forensics expert, at 10:12 a.m. on January 15, Botticella accessed 12 company documents on his laptop computer (including highly confidential Bimbo documents), all in the course of 13 seconds.  Computer forensics also revealed that three external storage devices had been attached to the laptop, only two of which have been accounted for.  When questioned about this in deposition, Botticella testified that he attached the USB flash drives to the computer as “practice” in order to improve his computer skills for his job at Hostess.

On February 9, 2010, the court entered a preliminary injunction barring Botticella from starting his employment at Hostess and from divulging any of Bimbo’s trade secrets to anyone.  He was also ordered to return all of Bimbo’s confidential information in his possession back to his former employer.  This injunction was to remain in effect until after the trial, which was scheduled for April 12.  But by filing an appeal, Botticcella actually prolonged his unemployment until at least after the court of appeals enters its decision.

It remains to be seen how this case will be decided, but one thing is certain: it’s not just about English muffins

Privacy Settings on Facebook and My Space

Your privacy settings on Facebook or My Space may determine when a third-party can subpoena electronic communications from your Facebook or My Space page.  In the copyright infringement case, Crispin v. Christian Audigier, Inc. et. al., the defendants served subpoenas on a number of


third-party entitites, to include the social networking providers Facebook and MySpace, Inc., seeking basic subscriber information and communicaitons relating to the case.

Read the opinion here.

We often wonder how private, “private” really is.  Here “private” apparently does matter.  The privacy settings in the case will determine the extent to which Facebook and My Space comments are accessible to the other party in litigation and can be obtained by subpoena.

Update on J.D. Salinger and The Catcher in the Rye

In an earlier post entitled “J.D. Salinger, The Catcher in the Rye & Intellectual Property Rights”, we discussed a pending case (Salinger v. Colting) in which a U.S. district court granted the estate of J.D. Salinger a preliminary injunction against Swedish author Fredrik Colting, his publishers and distributors concerning the 


book 60 Years Later: Coming Through the Rye. In a recent decision concerning this case, the Second Circuit Court of Appeals ruled that the district court used the wrong standard for granting the preliminary injunction, vacating the order and remanding the case back to the district court.

The court of appeals said that the correct standard for a preliminary injunction in a copyright infringement case is the four-factor test outlined in the Supreme Court decision eBay, Inc. v. MercExchange, L.L.C. The four factors are: (1) the plaintiff suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction.

This ruling is significant, because it may mark the first time in a reported case that the so-called eBay factors are being applied to a preliminary injunction in a copyright infringement dispute.  The eBay case involved a permanent injunction in a patent dispute.  However, the decision did nothing to immediately change the situation for the defendants. The preliminary injunction (which barred Colting, his publishers and distributors from advertising, publishing or distributing Colting’s book) will stay in place for ten days following the issuance of the mandate. This will give the estate of J.D. Salinger the opportunity to apply for a temporary restraining order pending the rehearing of the motion for a preliminary injunction.

Lacey Brown

We were disappointed to see Amarillo’s own Lacey Brown leave American Idol but a Top

12 finish is still an incredible accomplishment!  We know this is just the beginning for Lacey.  Her talent is going to take her very far!

There is a nice article about Lacey in the April 2010 issue of Accent West.

Harry Potter v. Willy the Wizard: Who Came First?

Ever since the first Harry Potter novel was released in 1997, readers all over the world have delighted in the fantastic adventures of Harry and his classmates at the Hogwarts School of Witchcraft and Wizadry.  But when J.K. Rowling wrote the fourth book in the series,
Harry Potter and the Goblet of Fire, was she drawing from her own imagination or from a novel written years before Harry Potter was even conceived?  According to the family of Adrian Jacobs, author of the 1987 novel entitled, The Adventures of Willy Wizard No 2: Livid Land, Ms Rowling plagiarized the late Mr. Jacobs.

The estate of Adrian Jacobs (who died in 1997) first sued Rowling’s publisher, Bloomsbury Publishing, in June of 2009, before joining Ms. Rowling as a defendant in February of 2010.  The lawsuit, filed in High Court in England, alleges that both novels involve human hostages being held in a bathroom by half-human creatures, as well as boys who are trying to rescue the hostages. Other alleged similarities between the two books include a wizard train and a wizard prison.

Regardless of how similar two literary works may be, an author is not generally considered to be liable for plagiarism if that author’s work was arrived at independently.  J.K. Rowling has claimed that she had never even heard of Adrian Jacobs or his novel until the first accusation of plagiarism was made in 2004, some four years after the publication of Harry Potter and the Goblet of Fire.

This is not the first plagiarism lawsuit filed against Rowling.  In 1999, American author Nancy Stouffer claimed that her two 1984 works, The Legend of Rah and the Muggles and Larry Potter and His Best Friend Lilly were the basis for the Harry Potter character.  Rowling claimed that since only portions of Rah were printed in booklet form in 1986 and were never sold, either in the United States or elsewhere, there is no way that she could have plagiarized Stouffer’s works, especially since she never even visited the United States until 1998, a year after the publication of the first Harry Potter novel.  In 2002, Rowling, her publisher, and Warner Brothers (owner of the movie rights to the Harry Potter books) sought and received adeclaratory judgment that they had not infringed on Stouffer’s works. It was further ruled that Stouffer had in fact defrauded the Court.

Stories of wizards & witchcraft date back at least as far as the legends of Merlin the Magician, and there are common threads that run through many such stories.  Not even a magic spell will help the estate of Adrian Jacobs unless the estate can prove direct copying.