Legal Memoranda Statement of Facts

The prospective plaintiff wrote a novel a year ago on her home computer. She then distributed 100 copies to acquaintances and agents, but without a copyright notice attached. Yesterday she discovered a recently published novel that appeared to have plagiarized her work and is considering a lawsuit.

For a writing to be eligible for copyright protection the work must be original, which the courts and the U.S. Copyright Office have interpreted to mean an independent work that did not rely on the work of others to create. For example, students who complete an essay exam own the copyright to their answer if the work is original. Copyright protection is in effect as soon as the page is inked or the keystrokes captured by the software program. Based on the facts of this case the plaintiff wrote a novel and the work is therefore assumed to be original.

The idea of writing a novel or any facts contained within cannot be copyrighted, only the way the novel is expressed. A literary work is considered original if the language, style, and sequencing is solely the work of the author. Any paraphrasing or quoting from copyrighted works must be referenced to the original source for the work to remain copyrightable. In addition, only the original author can create a derivative work without violating copyright law. Since the plaintiff wrote a novel, it is assumed to be a complete work of fiction; therefore, the entire work is copyrightable. Since the plaintiff found complete passages in the published novel that appeared to have been copied word from her novel, without being cited, the word sequence and style of writing would be protected under copyright law.

A year had passed between the completion of the novel and the plaintiff noticing passages the alleged plagiarized passages in the recently published novel. The plaintiff's novel was copyrightable as soon as it was written and the duration of the copyright would have lasted for the lifetime of the author. Any copyright protection that the plaintiff's novel enjoyed was therefore still in effect when the alleged plagiarized work was published.

Whether an original work is registered with the U.S. Copyright Office or not, copyright protections are still in effect. Since the plaintiff chose not to affix a copyright notice to the novel or register the work, the novel is considered unregistered. However, for the plaintiff to file suit under copyright infringement protections the novel must be registered.

Since the work was not registered at the time of the alleged infringement the plaintiff's suit is limited to actual damages. The plaintiff will therefore be required to provide proof that she has incurred lost sales and profits due to publication of the plagiarized passages. If the work had been registered before the alleged plagiarized novel was published then the plaintiff could have sued based on copyright infringement alone.

Relevant Statutes

Inventions and writings are the two types of intellectual property covered by Article I, Section 8, Clause 8 in the U.S. Constitution. Congress created new copyright laws after 20 years of study in 1976, laws which preempt all state copyright laws to create a more uniform approach to intellectual property. The Copyright Act of 1976 is encoded within U.S.C. Title 17, § 101-810.

Relevant Jurisprudence

Federal court jurisprudence is straightforward when it concerns common literary works like novels. The most relevant issue concerning the plaintiff's suit is the lack of a copyright notice on the distributed copies and being unregistered. These deficits, however, will not preclude the plaintiff from seeking redress in federal court; only limit any awards to actual damages.

Conclusion

The plaintiff's novel is protected under copyright law and this protection was still in effect when the newly published, allegedly plagiarized novel appeared in book stores. The plaintiff's novel would be considered an original work, including the allegedly plagiarized passages. The unregistered status of the work or the lack of copyright notice on the distributed copies does not render the work unprotected under copyright law, although an infringement lawsuit is made more difficult by these deficits.

Recommendations

The first recommendation would be to register the plaintiff's novel with the Register of Copyrights in Washington, D.C. As soon as possible. The plaintiff would then be encouraged to try and determine whether the allegedly plagiarized novel is being sold and in what volume. If there are significant sales and profits being made from the published novel then a lawsuit alleging copyright infringement should be filed against the author(s).

Memorandum

To: Professor's Name

Re:

Date: October 25, 2013

Statement of Facts

Acme Agribusiness, Incorporated (AAI) is interested in expanding the scope of their business to include medical marijuana, but under federal and several state laws its use is illegal. To change the legal status of medical marijuana within the United States AAI is seeking...

Until 1978 federal courts had restricted First Amendment rights for non-media corporations like AAI, but this changed when the U.S. Supreme Court ruled that such corporations have a First Amendment right to disseminate information and that customers have a right to hear this information. In Consolidated Edison Co. Of New York, Inc. v. Public Service Commission of New York, Inc. The Supreme Court ruled that corporate speech cannot be restricted because of its message, ideas, subject matter, or content. Based on Supreme Court jurisprudence, AAI is free to promote the legalization and use of medical marijuana and this speech is protected by the First Amendment.
First Amendment rights for non-media corporations were extended to the political realm when the Supreme Court ruled in Citizens United that corporations can fund speech about political candidates. Under Citizens United, however, corporations still cannot contribute directly to federal political candidates. Instead, corporate contributions in support of a candidate must be spent indirectly through advertising. This type of political spending has no limits.

Rules concerning the public disclosure of political spending require that any spending by corporations on behalf of a candidate or issue to be made public. If AAI wishes to remain anonymous, however, a political action committee (PAC) could be formed to collect contributions from corporate owners, board members, shareholders, management, and employees. The formation of a PAC would also allow direct contributions to be made to the campaigns of political candidates that favor legalizing marijuana for medical use, although there are strict limitations on the amount permissible per candidate. Limited individual contributions to candidates can also be made.

AAI is also free to lobby members of Congress concerning the legalization of medical marijuana. AAI will have to disclose their lobbying activity to the public if a lobbyist's income exceeds $2,500 or spending exceeds $10,000 per quarter, under the Lobbying Disclosure Act of 1995.

Although the First Amendment protects AAI's speech concerning the legalization of medical marijuana, media outlets are not obligated to carry ads or editorials in favor of this position. Prior to the FCC eliminating the Fairness Doctrine in 1987, media outlets were required to carry opposing views about political and social issues. The decision to eliminate the Fairness Doctrine was based on the premise that media outlets would be less likely to publish or broadcast controversial issues when required to give the opposition equal space or time. Should AAI encounter resistance to their efforts to publicize the benefits of medical marijuana then the corporation will be forced to shop around for more amenable media outlets. Alternatively, AAI could create a media outlet for the sole purpose of medical marijuana information dissemination.

Relevant Statutes

The First Amendment in the U.S. Constitution is the relevant statute protecting AAI's right to disseminate information supporting the legalization and medical benefits of marijuana. The Bipartisan Campaign Reform Act of 2002 defines political contribution limits that can be made by PACs and individuals. The Federal Election Campaign Act of 1971 defines the disclosure rules concerning campaign contributions. The Lobbying Disclosure Act of 1995 defines the disclosure rules for lobbying efforts to influence members of Congress.

Relevant Jurisprudence

The Supreme Court's ruling First National Bank of Boston v. Bellotti (1978) eliminated the gag on corporate speech concerning issues of public concern, including political speech. The decision in Citizens United v. Federal Elections Commission (2010) allowed for-profit corporations to contribute indirectly to political candidates through supportive advertising. The U.S. Court of Appeals for the D.C. Circuit in Syracuse Peace Council v. FCC (1989) upheld the FCC's decision to stop enforcing the Fairness Doctrine.

Conclusion

AAI has a number of legal options available for promoting their message. There are no limits on the amount of spending that can be directed towards publicizing AAI's position on this important and controversial social issue, although advertisers are not required to carry AAI's message. The laws and rules governing political speech are complex, but do not represent a significant barrier to AAI's interest in moving Congress closer to legalizing medical marijuana as long as contribution limits and disclosure…