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are contracts copyrightrable ?

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S

shaver

Guest
my competitor has copied my website terms and conditons for using it and put it on his web site just changing a few lines.

Are legal contracts copyrightable in this instance ? Do I have a case against him?
 


ALawyer

Senior Member
Generally they are. But suing him is expensive.

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This is intended as general information only and NOT LEGAL ADVICE. You are not my client, and I have no obligation of any kind to you. To retain a lawyer, go to http://AttorneyPages.com
 

I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by shaver:
my competitor has copied my website terms and conditons for using it and put it on his web site just changing a few lines.

Are legal contracts copyrightable in this instance ? Do I have a case against him?
<HR></BLOCKQUOTE>


My response:

I respectfully dissent from the opinion of my collegue, ALawyer. After reading the following, I think you'll agree that mere "terms and conditions" are NOT copyrightable.

"What Copyright Protects Copyright protects expression. The Copyright Act of 1976 states that the items of expression can include literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic and sculptural works; audio-visual works; sound recordings; and architectural works. An original expression is eligible for copyright protection as soon as it is fixed in a tangible form.

Consequently, almost any original expression that is fixed in a tangible form is protected as soon as it is expressed. For example, a graphic created in Photoshop is protected as soon as the file is saved to disk. This Web page was protected as soon as I stopped typing and saved the .html file. As you can see, most of the items that you are likely to encounter on the net are eligible for copyright protection, including the text of web pages, ASCII text documents, contents of email and Usenet messages, sound files, graphics files, executable computer programs and computer program listings.

What Copyright doesn't Protect However, not absolutely everything is eligible for copyright. These are items that by their very nature are not eligible for copyright protection:
Ideas
Facts
Titles
Names
Short phrases
Blank forms

THE FAIR USE TEST

Although the Fair Use provision is in the Coypright Act, prior to the 1990s, it was seldom invoked outside of academic circles. Until the 2 Live Crew case. Fair Use seemed only to concern itself with making copies for the classroom and using portions of works in academics treateses. The Fair Use provision and the four factors to be considered in a fair use analysis were dramatically fleshed out in the 2 Live Crew case. Here, we look at the fair use provision and the four factors to be used in making a determination of fair use. Fair Use Provision of the Copyright Act - The Statutory Decree §107. Limitations on exclusive rights: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Factor 1 -
Purpose and Character of Use
This first factor looks at the new work takes into account the following three sub-factors.
Commercial nature or non-profit educational purposes.
Preamble Purposes
Criticism
Comment
News reporting
Teaching
Scholarship
Research
Degree of Transformation
The first sub-factor (1) simply looks at the new work and determines whether it was created primarily as a for profit venture or was created for a non-profit educational purpose. While not at all determinative, this test indicates that preference will be granted to works that were created for non-profit educational purposes (like this Web page!).

The second sub-factor (2) looks to see if the new work is for one of the purposes that are mentioned in the preamble of the fair use provision. It should be noted that this list is not restrictive. However, the burden of showing fair use is somewhat easier if the work is for one of these purposes.

The third sub-factor (3) looks at the degree of transformation accomplished by the new work. In other words, this sub-factor seeks to determine whether the new work merely supplants the original, or whether it adds something new, with a further purpose or different character, thereby altering the first with new expression, meaning or message.
Factor 2 -
Nature of Copyrighted Work
This second factor acknowledges that fact that some works are simply more deserving of copyright protection than others. Consequently, this portion of the test looks at the original work and attempts to determine where that work is in the spectrum of worthiness of copyright protection. Factor 3 -
Relative Amount
The third factor looks at the amount and substantiality of the copying in relation to the work as a whole. However, the critical determination is whether the quality and value of the materials used are reasonable in relation to the purpose of copying. This is not a pure ratio test in that using a whole work may be fair use in some circumstances, whereas using a tiny fraction of a work not qualify for fair use in other circumstances.

Therefore, the quantity, as well as the quality and importance, of the copied material must be considered. Some Justices have looked to see that "no more was taken than was necessary" to achieve the purpose for which the materials were copied. Factor 4 -
Effect upon Potential Market
The fourth factor considers the extent of harm to the market or potential market of the original work caused by the infringement. This test takes into account harm to the original, as well as harm to derivative works."

IAAL



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