Case Details Tom Lawson is an editor of Popular Scientists, a new science magazi

Question

Case Details

Tom Lawson is an editor of Popular Scientists, a new science magazine that publishes articles on scientific advances. In an effort to appeal to the general public, The Popular Scientists publication uses simple language to explain scientific concepts. In researching material for an article on memory loss in the aging population, Tom discovers an interesting abstract painting of the human body painted by Allison Preston, an artist known for her abstract paintings of the human body. Intrigued by the painting, Tom decides to copy a portion of the painting showing the human brain and inserts the copied material into an illustration in his article on memory loss. After publishing the article, demand for Popular Scientists increases dramatically. Interestingly, one reader comments that the illustration in Tom's recent article "looks familiar."

Although Tom's article on memory loss generates additional magazine sales for Popular Scientists, the article also generates two lawsuits. Allison Preston sues Popular Scientists claiming that Tom violated the copyright laws by using Allison's painting without paying royalties or requesting permission. Allison's lawsuit quickly makes the news headlines. After reading about Allison's lawsuit, the editor of Popular Science sues Popular Scientists for trademark infringement. The Popular Science publication is a spoof magazine that relies on unscientific facts to highlight America's obsession with questionable weight loss options.

Write 2 pages or less:

Initial Posting

Did Tom violate the copyright laws? Does the fair use exception apply? Why or why not? Make sure to address each of the four provisions of the fair use exception and fully explain your conclusion.

Did Popular Scientist violate the trademark laws, given that another magazine is called "Popular Science?" Why or why not? Explain.

Pose a follow-up question by suggesting or altering one fact that would likely affect whether the fair use exception applies to the instant case. Be creative! Use the phrase, “How would you decide this case if . . . “

Reply Posting

Address the points raised in a classmate's initial posting and explain how your classmate's suggested fact would likely impact whether the fair use exception applies.

What additional information would be helpful in reaching a decision in this case? Why would this additional information be relevant to your decision?

Explanation / Answer

1. The doctrine of fair use uses the criteria of four factor test which is as gievn below.

(a) The purpose and character of the use - The use was intended to make the magazine's article more understandable and interesting for a reader. The use of image was potentially capable of enhancing popularity and increasing sales of magazine.

(b) Nature of copyright work - It was an intellectual property work related to rendering of facts, though not an original invention, but it was unique.

(c) The amount and substantiality of the portion taken - A small portion of the creation is taken.

(d) Effect of use on the potential market - The sales soared dramatically after the illustration was published in the magazine.

The points (a) and (d) indicate that the use had commercial intentions and it resulted in monetary / other types of gan for the user, Hence it can not be classified as a fair use, and Tom is liable for violation of copyright law as he did not take permission from the creator.

2. The lawsuit by Popular Science does not hold because of the difference in the nature of the business the companies are in. The company filing the lawsuit engages in spoof, and uses unscientific facts to highlight a single health related issue, which is entirely different from fact based approach of Popular Scientists to educate the readers in healthcare in a simple way. The meaning of names are also different in nature. Therefore it can't be said that the defendant copied the name or work of the plaintiff.

3. The factor (d) was responsible for non applicability of fair use doctrine,as the use enhanced popularilty and sales of magazine. Had there been no effect on the sales of magazine after publication of the illustration, it would have counted as a fair use.

" How would you decide the case if there has been no effect on demand of the magazine after use of illustration."

4. The additional information about the copyrights obtained by the creator for the work, pattern of sales before and after the use of illustration and the probable contribution of illustration in the rise of demand, monetary gains after the use and its sustainability will be helpful in deciding the fair use exception.

Above facts will be helpful in deciding the contribution of the illustration in benefiting the Tom's cause.

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