RE: Re: Responsibility for an insert...

From: Jim Donohue <jim[_at_]donohueteam.com>
Date: Wed, 03 May 2006 11:20:30 -0400

Interesting...but not particularly responsive. I have no doubt whatsoever about the existence of the copyright violation. I understand copyright pretty well as well as the specifics of map copyrights. The guy is in violation and I do not need a copyright attorney to sanctify the fact. Vast sections of the map exactly overlay. The alpha numeric grid is also identical - demonstrating simple text theft. The organization of information is protectable.  

The question however is whether there is, in fact, any practical way to right the wrong.  

The violator has likely had the map for some years and has made money off it. He has just destroyed a great deal of its utility to me. He effectively took a useful marketing tool and destroyed its worth.  

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 So you see why my first and only advice is to consult an attorney -- bringing in the maps and the proof of origination and copying. I cannot say that what was done violates your copyright or not without quite a bit more information. I can say that it may be worth a closer look by an attorney.

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 -----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Steven Jamar Sent: Tuesday, May 02, 2006 3:40 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Responsibility for an insert...  

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<< Consult a copyright attorney.

Copyrights in maps are generally "thin" -- most of the info on them is factual and not separately protectable and so the protection is either as a compilation or as a simple 2 dimensional graphical work. The latter protects the map pretty much as it would a drawing of something that is not very original and even then mostly as a composite (not copyright term of art) work.

Your basic protection is against photocopying -- exact duplication -- since it is so factual. If someone uses your map (and maybe others) to extract facts and draw their own, that is usually not an infringement. Tracing infringes; copying facts does not.

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Gross oversimplification. There is a very large area between tracing infringes and copying facts does not. For instance my map is not particularly accurate...it constructively distorts the real facts to satisfy other requirements. If you copy my distortions you violate copyright as surely as the guy who traces a Picasso. The facts are fair game...my distortions of them are not.   

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 So you see why my first and only advice is to consult an attorney -- bringing in the maps and the proof of origination and copying. I cannot say that what was done violates your copyright or not without quite a bit more information. I can say that it may be worth a closer look by an attorney

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Again wrong issue..it is a clear copyright violation. While an attorney may well need to satisfy himself that it is, in fact, a violation, that to me is not an issue. So if we agree with an Attorney on other issues I would not object to billing an hour to satisfy his itch. But I am not about to part with a grand or five grand or twenty five grand so that the Attorney can reinforce what I already know to be true.  

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For this sort of matter, I would demand a $1000 non-refundable retainer and $200 per hour draw against it. Many lawyers would demand more; some younger, novice lawyers would demand a lot less.

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Demand as you will. I have no intention of paying anyone to confirm the obvious. As I said originally a reasonable up front retainer and then a contingency. This is not a grudge match where I pay thousands to humiliate my competitor. Any storefront lawyer in town can get the C&D...what I am trying to figure it is whether there is any money in any of this.  

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Assuming the distribution was to about 7700 homes, and the value of the map is about $5.00, that would be $38,500. But I suspect the market value for such a map would be closer to $2.00 and the number of people willing to pay for it would be a lot fewer than 7700. So damages could be problematic. But a jury could potentially decide quite differently -- but that takes you into a whole different realm of costs -- and then the question asked by Mr. Noble -- would you spend $25,000 to defend your copyright here -- is about right.

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 You confuse what business we are in. The normal rule of thumb is that an advertisement should produce 15 to 20 times its cost in revenue. So say the maps he lifted are worth $1.00 each. That is $7700. The revenue produced is $115,000. Now we are talking interesting money. Note also that I need only prove how much money he made. He has to defend that the money did not come from use of the map. How would you like that as an exercise? Note by the way I can use his ongoing revenue as time goes on. The tails on such things are well over a year.  

Remember I get the "profit" he makes from the maps...not what they are worth retail.  

Interesting stuff...I wonder how many of you copyright lawyers understand the businesses you are trying to deal with?  

Jim Donohue    

On May 2, 2006, at 2:30 PM, Jim Donohue wrote:

O

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Prof. Steven D. Jamar                               vox:  202-806-8017

Howard University School of Law                     fax:  202-806-8567

2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com

Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/




"Education:  the path from cocky ignorance to miserable uncertainty."




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Received on Wed May 03 2006 - 19:20:30 GMT