Re: brochure / order form

Thank you all for your replies. I especially appreciated Bob Stock's quotes and cites of authority. I will represent the defendent (as co-counsel with their local attorney). To answer Bob C's questions, there was no copyright notice on their brochure, but I've read that these are not very useful since 1988 when those formalities were removed. Plaintiffs ARE registering their brochure in preparation for filing suit, and have told us so in their threatening letter.

I'll look up James G. Goggin's cases tomorrow.

I've had a better chance to look over the materials and now recant my statement that the form was virtually prescribed by the data needed on the form. But the two forms have 8 steps of instructions which are content-wise the same, a 1-to-1 correspondence, although all were reworded fairly thoroughly. There are graphic elements to the form as well, but THOSE represent aspects of the product for the buyer to choose amongst -- shapes and colors, really -- which do seem to me to be a kind of a catalog of common product choices and are relatively standard within this industry.

I'm thinking of putting pictures of these up on my web site so you could look, and also of typing in all the instructions so you could see for yourselves what I mean. I believe that my doing so be considered fair use; does anyone disagree?

Bob Cumbow's comments at first made my heart sink. But then (he) you said that if I could show that these had fallen into public domain, defendents could prevail. What does that take? They intended to and did widely distribute the brochure, without any copyright notice, never expecting any competition in their field.

Clearly their true desire here is to hinder competition, in spite of what they may say to the contrary. What they really should be bringing is unfair competition claims in state court. They claim damages ($1,500,000+) in terms of the amount of business or goodwill they have lost or that my client profited. By the way, what IS the measure of damages in copyright? There were certainly no lost sales of the brochure (the work) itself! If one ad agency sued another, then it would be for the last ad revenues, I suspect. I'm mystified.

Thanks again and I eagerly await more responses. Tomorrow is my research day.

       |                           |
       |    Stuart J. Williams     |
     _ |     Attorney At Law       | _
    / )|  Trusts and Estate Plans  |( \
   / / |    StuWilliams[_at_]usa.net    | \ \
 _( (_ |       617-527-0050        | _) )_
(((\ \>|_/->___________________<-\_|</ /)))
(\\\\ \_/ /                     \ \_/ ////)
 \       /                       \       /
  \    _/                         \_    /
  /   /                             \   \
 /___/                               \___\