Copyright Infringement 101: Don’t Try This at Home

Law Law Land’s loyal readers know much better than to commit unabashed copyright violations like the magazine Cooks Source. But because this story has become the Internet meme du jour, we couldn’t resist the opportunity to weigh in and use this as a “teaching moment.”

First, a recap. Cooks Source is a magazine targeted at “food lovers in Western New England” which was, until November 4, wholly unknown to this blogger (and, I’m betting, 99.99% of the Internet world). Cooks Source was thrust ignominiously into the spotlight when blogger Monica Gaudio posted a story about her discovery that Cooks Sourcehad taken her piece on apple pie (revealing that “As American as Apple Pie — Isn’t!”) and copied it into the magazine — with Gaudio’s byline, but without paying her a dime. When Gaudio e-mailed the magazine asking for a public Facebook apology and a $130 donation to the Columbia School of Journalism, she received the following response from editor Judith Griggs:

“…Honestly Monica, the web is considered ‘public domain’ and you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I’m sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than it was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me…ALWAYS for free!”

Wow. Go figure — all this time, I never knew that if a client receives a demand letter for allegedly infringing on someone’s intellectual property rights, the correct response is, “I did you a favor, so really you should pay me!” Genius.

But seriously, this email is perfect fodder for a little game I like to call, “How many gross misstatements of the law can you find in one paragraph?” (This may wind up being very problematic for Cooks Source, since turns out that this isn’t the first time Cooks Source has taken liberties with other peoples’ material…and far from it. Apparently, Griggs has been skating by on her incorrect legal opinions for some time without notice, with victims including Martha Stewart, NPR and Sunset magazine.)

Misstatement #1: “the web is considered public domain.” Sadly for Griggs and thankfully for the rest of us, just because you write something online, it is not automatically in the “public domain” and it does not automatically give any would-be publisher license to copy it for her revenue-generating magazine. Griggs could write about the same ideas and/or facts as you, because as we’ve explained, copyright does not protect ideas or facts. However, copyrightdoes protect the expression of those ideas or facts.

For example, Gaudio would not be able to obtain copyright protection for a list of ingredients for apple pie because a list of ingredients is not subject to copyright protection. But Gaudio’s piece on apple pie was subject to copyright protection because it was not just a recitation of ingredients, it was a “substantial literary expression,” and that expression was protected.Cooks Source could have written its own article about apple pie without infringing, because the idea of apple pie is not protected. But it could not take Gaudio’s piece and use it almost word-for-word, because that infringed on her expression.

Misstatement #2: “…you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it!” The fact that Gaudio was credited doesn’t save Cooks Sourcefrom liability for copyright infringement. (Nor, as you will see in a moment, has it spared them from the wrath of the Internet.)

Misstatement #3: “We put some time into rewrites, you should compensate me!” Suffice it to say that since expression is protected, you can’t edit someone’s written work (while keeping the substance of the expression intact) and then expect to not only be off the hook, but also to be sent roses and champagne.

Misstatement #4: “I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me…ALWAYS for free!” This blogger guesses that these “other young writers” either agree to write for free to get experience and expand their portfolio (which is kosher) or else are victims of the same “I’ll steal your work and expect a thank you” tactic as Gaudio (not kosher). In any event, the fact that Griggs may have a particular arrangement with other writers does not mean she’s entitled to free written work from anyone she chooses.

So there you go: four misstatements of the law in just seven sentences. And, maybe equally troublesome for Griggs’ future editorial career, an Official Rachel Wilkes-Determined Audacity ScoreTM of 100%. And if you don’t believe me, Cooks Source has now incurred the wrath of the Internet masses, particularly on its Facebook page. (If Griggs is of the “there’s no such thing as bad publicity” school of thought, she will be tickled pink — even if the comments blame Cooks Source for everything from the breakup of the Beatles to global warming.) These comments are printed approximately every nanosecond, so I urge you to look for yourself, but I feel compelled to share some of the more creative (non-obscene) insults with you:

  • Cooks Source killed Bambi’s mom, then stole the recipe to prepare her.
  • A non-libel post: I’m not saying that CSM publications are printed at a shop employing child labor and on paper that has parts from dead puppies, but I don’t have information to the contrary either. Frankly, I’m deeply concerned that CSM has not made public statement on these topics.
  • Cooks Source doesn’t verify email forward with Snopes.
  • Cooks Source sits in the left-turn lane sending text messages after the left-turn green arrow lights up, and then when you politely and lightly “beep-beep” at them, they give you the finger, and then speed off as the arrow light turns yellow.
  • Cooks Source refused to add more cowbell.

Take home message? Don’t steal someone’s online article for your magazine. And certainly don’t turn around and demand that person pay you for the privilege. You may find yourself a defendant in a pesky copyright infringement lawsuit. And worse yet, you may have to deal with people leveling really harsh accusations, such as that you “tag unflattering pictures of [people] on Facebook.” (ZING!)

So please. Don’t try this at home.

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One Response to “Copyright Infringement 101: Don’t Try This at Home”

  1. Lovely article, Rachel! It’s insightful and entertaining, and should be required reading for anyone publishing on the web.

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