Idea Rights–Problems, Questions, Comments
This page presents questions, problems, and comments on idea rights. The discussion is linked to the book, Idea Rights, but it is also designed to further discussion on the entire field. In time, I hope to set up other pages that will include discussion of related topics.
May 23, 2012
In 2007, Grouchy Marks, of the Marks Brothers wrote, “The Adventures of Ham”, a very short story about the adventures of a pet ham and cheese sandwich that he and his brothers Sleeky, Freeky, and Bleeky carried around for four years. The story was 1172 words long. Grouchy published it online on motJust, an online publishing service similar to WordPress. He clicked “Accept” to the lengthy and turgid “conditions.” motJust has a grammar corrector that “fixes” what you input. It made seven corrections. The published story became an instant favorite. It has sold millions of copies, been translated into nineteen languages and been turned into a movie which eclipses the Rocky Horror Picture Show in cult status. The clickwrap publishing licence contained extensive copyright transfer provisions, including a perpetual fifteen percent royalty on all works (including derivatives) published by motJust. motJust is now asserting a huge claim for royalties.
Arguments and discussion.
I’ll supply a brief argument for motJust. Why not write up an argument for Grouchy. If you’d like to have your argument considered for posting on this page, let me know. When (if!) I master the technicalities of posting, I will post a few of the replies. I’ll keep my argument to 200 words. (The facts above come in at less than 150.) You keep you arguments brief, too.
Note. motJust and the Marks Brothers are fictional. “Any resemblance to persons (including corporations!) living or dead is purely coincidental.” This will be the case throughout these Idea Rights pages.
For motJust. Copyright vests immediately in the author, Grouchy. However, Grouchy entered a contract. The online “clickwrap” agreement is a printable modern form of writing. Grouchy granted a right to royalties in return for the right to use motJust’s valuable online system, aspects of which are protected by copyright, as well. (See the discussion of intellectual property contracts, pages 178-181.) He transferred some of his “bundle” of rights, but not the copyright itself. (See the discussion of the six separate rights, pages 64-66.) Thus, of course,* motJust is entitled to the royalties. This is particularly appropriate in this case, as motJust can be considered one of the authors of a joint work, having contributed the grammar.
*Comments. Lawyers sometimes inject pomposities like “of course” into legal arguments. One must be careful about that. It can boomerang, because it turns people off. The last sentence has been thrown as what lawyers call a “makeweight” argument. Sometimes attorneys have more than one argument. motJust has a pretty good argument that it is literally an author of a joint work: “You do the rough writing, I’ll do the grammar and needed cleanup and we’ll make a good story.” In the argument above, motJust has chosen to stick with the contract argument, and add an element of how just and good it is! I’ll add some further comments after some arguments for Grouchy come in.
A practical question. What if motJust is a pretty powerful company that is strongly litigious. Does that create a problem for Grouchy, even if he has a strong legal argument in his favor? See pages 10, 71, and the discussion of the Chewy Vuiton trademark case on page 127.
Discussion Question 1 Consider the following:
Ideas are common resources. No one truly “owns” ideas. Nevertheless, intellectual property laws have been established that give various parties enormous control over ideas and their use. What can and should be done to return ideas to the public including those who bring new ideas to our attention?