Defenses to infringement
A defendant in an infringement action may rebut the presumption of copying by a showing of independent creation. It is possible for an author to create a work independently while bearing similarities to another. If access is not established, there is no copying, even if there is a striking similarity between the two works. For this reason, corporations will destroy or return unsolicited mailings from authors as a policy.
The legal doctrine of de minimis non curat lex, “the law does not care about trivial things,” provides a de minimis copying defense against infringement. When the plaintiff establishes only a trivial use of the copyrighted work by the defendant, there is no infringement. For example, an out-of-focus copyrighted picture appearing only momentarily in the background of a commercial is not infringement. The Beastie Boys successfully used this defense in a lawsuit over the use of three musical notes in the song “Pass the Mic.” The Beastie Boys had obtained a license to use the recording, but the rights to the song itself were retained by the original composer. The court held that use of three notes was not a sufficient use and amounted to de minimis copying. However, the Sixth Circuit has held that the de minimis defense is not available for the sampling of sound recordings because of their intrinsic value in saving the sampler time and costs in hiring musicians to perform the music however short.
The two most important defenses to copyright infringement are the first sale doctrine and fair use.
The first sale doctrine is a defense to infringement of the distribution right. It permits a lawful purchaser of a copyrighted work to resell or otherwise dispose of it. This, however, is not a defense to the reproduction right.
Fair use is an affirmative defense, but its application will vary greatly depending on the facts and circumstances of the case. Courts apply a four part balancing test examining the scope of infringement, the effect on the copyright owner’s rights (e.g. his or her ability to sell the work), the amount of the work copied, and the purpose of the infringement. Courts have held that a non-commercial use is not fair use when it has a substantial market effect. In cases with a small-scale impact, courts are more receptive to arguments regarding the effect on the copyright owner’s market or potential market. Fair use is used mainly in the United States. Other common law jurisdictions have the more rigidly defined defence of fair dealing, while civil law jurisdictions also have similar defences.
The above is copied and pasted from Wikipedia. It is nonsense, in my opinion, to be allowed a copyright for the phrase “culture of accountability.” It is so common in business language. Off topic a bit, but it reminds me of Paris Hilton trying to copyright the phrase “that’s hot” a few years ago. She was rejected.
I am dealing with a similar issue as we speak. I have been in sales management for twenty years. In that time I have read most every book on sales and attended most seminars. What is so evident to me is how they all “borrow” from one another. They are always trying to come up with a new spin or terminology for principles and techniques that have been around forever. Of course we are all more conscious of content from the time period we first begin studying a discipline. I am amazed at how much of the sales training I see is reworked from the works of Tom Hopkins and Zig Ziglar. Hopkin’s “How to Master the Art of Selling” is probably the most influential book on sales of the last 25 years. I am sure that if pressed, he would admit that he got his from a mentor, and so on, and so on…
I was recently approached by a company to do some contract work with them in sales training. They have a collaborative agreement with a large consulting company, meaning they license content from them. I checked it out and negotiated with them for a compensation plan I would be satisfied with. The CEO agreed, but the regional representative put up resistance, wanting me to come in under him and split my earning 50/50 with him. I passed and decided to form my own company and go it alone. Now they are emailing me saying that I signed a “non compete” (I did not) and confidentiality agreements and if I continue they will take legal action. It is more of a scare tactic, but I can definitely see them getting hold of my training content and pouring over it to find infringement, if only to slow the inevitable competition.
I visited the website of the company hassling you and they are very similar to the one I am dealing with, only smaller. I believe in intellectual rights. The problem in your and my case is that the law is being used to “bully” rather than protect legitimate interest.
Good luck to you. If you plan on distributing your paper further, see an attorney. If not, continue to do what you are doing now. Post your experience on as many boards and public avenues as you can. The court of public opinion seems to be the only fair and equitable court these days when the little guy is up against Goliath. [/quote]
Thanks for the input. Ya I don’t understand why that phrase was allowed to be trade marked, it is pretty common in business as you said. Myself i’m following different career path now, so it is unlikely to affect me really, although I’d still like to be able to place this on my C.V. and whatnot and of course it enrages me; however the prof that worked with me on this paper planned to reference our article in future publications of his. I think he will end up getting lawyer to look into it more.