Copyright Law and First Amendment Rights: Legal Memoranda

Copyright Protection for an Unregistered Novel

The prospective plaintiff wrote a novel a year ago on her home computer. She then distributed 100 copies to acquaintances and agents 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 — a term the courts and the U.S. Copyright Office have interpreted to mean an independent work that did not rely on the work of others. Copyright protection takes effect as soon as the page is inked or the keystrokes are captured by a 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 it, cannot be copyrighted; only the way the novel is expressed receives protection. A literary work is considered original if the language, style, and sequencing are solely the work of the author. Any paraphrasing or quoting from copyrighted works must be attributed 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 assumed to be a complete work of fiction, the entire work is copyrightable. Because the plaintiff found complete passages in the published novel that appeared to have been copied word-for-word from her novel without citation, the word sequence and style of writing would be protected under copyright law.

A year passed between the completion of the novel and the plaintiff noticing the allegedly 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 lasts for the lifetime of the author. Any copyright protection that the plaintiff's novel enjoyed was therefore still in effect when the allegedly plagiarized work was published.

Whether an original work is registered with the U.S. Copyright Office or not, copyright protections remain 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 first be registered.

Because 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. Had the work been registered before the allegedly plagiarized novel was published, the plaintiff could have sued based on copyright infringement alone.

Corporate First Amendment Rights and Medical Marijuana Advocacy

Acme Agribusiness, Incorporated (AAI) is interested in expanding the scope of its business to include medical marijuana, but its use is illegal under federal law and the laws of several states. To change the legal status of medical marijuana within the United States, AAI is seeking to invest in a public relations campaign emphasizing the medical benefits of this drug and to influence movement toward legalization.

At issue is whether AAI or any corporation can legally disseminate information to the public concerning the possible medical benefits of marijuana, a drug currently illegal under federal law. Until 1978, federal courts had restricted First Amendment rights for non-media corporations like AAI. This changed when the U.S. Supreme Court ruled in Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, Inc. that such corporations have a First Amendment right to disseminate information and that customers have a right to receive this information. The 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 such 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 v. Federal Election Commission 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 be made public. If AAI wishes to remain anonymous, 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 who favor legalizing marijuana for medical use, although there are strict limitations on the permissible amount 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 its 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 on 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 its efforts to publicize the benefits of medical marijuana, the corporation will be forced to seek out more amenable media outlets. Alternatively, AAI could create a media outlet for the sole purpose of medical marijuana information dissemination.

The manufacturer of the recreational vehicle Liferisk has been barred from advertising in the United States by Congress for safety reasons. Liferisk has sought relief in federal court, arguing that the anti-Liferisk law is unconstitutional.