Book Review: The Grouchy Grammarian, by Thomas Parrish

1 November 2003

Regular readers of A Way With Words know that I have little tolerance for those that arbitrarily declare their own styles and preferences to be grammatically “correct.” As a result, most grammar manuals do not fair well in these pages. But Thomas Parrish has written a grammar book that does not do this. He recognizes that usage trumps personal preference and that there is a difference between quality, aesthetically pleasing prose and prose that is grammatically correct.

Parrish does this with a rather fun conceit. He creates the character of the “Grouchy Grammarian,” supposedly an old friend of Parrish. Parrish plays Boswell to the fictional grouch’s Johnson, recording his observations and opinions. As a result the book is more fun than many sterile grammar manuals and allows Parrish to create a balance between the traditional enmity between descriptivist and prescriptivist positions. The Grouch grudgingly concedes, for example, that the distinction between healthful and healthy has largely disappeared.

The core of the book consists of examples from current media (newspapers and magazines, mostly, with some television quotes included) of questionable or poor usages. Parrish’s Grouch laments such forms as the reason why… (redundant, why is inherent in reason), misuses of between and among (contrary to popular belief, between is not limited to two parties, but expresses a type of relationship), and misuse of subject-verb agreement. The examples are largely negative ones, hence the book’s subtitle of A How-Not-To Guide to the 47 Most Common Mistakes in English Made by Journalists, Broadcasters, and Others Who Should Know Better.

While Parrish’s conceit of the Grouch makes for better reading than most grammar manuals, it does limit the book’s utility. Because it is not organized alphabetically, the book is less useful as a reference. Modeled more on Strunk & White’s classic, it is much longer than that predecessor, making it too unwieldy for reference use. It is not a substitute for a good usage manual.

But still, if one enjoys reading books about grammar and usage (and frankly there are more of us that do than care to admit it), this is a diverting and entertaining read.

Softcover, 186 pp, John Wiley & Sons, 2002, ISBN: 0965730964, $19.95

Dept. of Legal Affairs: Intellectual Property, Part 2: Trademark

1 November 2003

In this two-part article, we examine the two types of intellectual property that relate to language, copyright and trademark. There are two other types of intellectual property, patent and trade secrets, that apply to physical inventions and commercial business information.

The point of intellectual property laws is to encourage the advancement of the art, science, and commerce by giving the creators of original works, ideas, and products a limited period within which they can exercise exclusive control over their works and derive profit from them.

In this second of two parts, we examine the concept of trademark and its effect on the language. We often hear of companies trademarking words and phrases, claiming them for their own. But can they do this, either realistically or legally? Can Fox News prevent someone (Al Franken, for instance) from using the phrase fair and balanced? Can Microsoft limit your use of the word windows? If you are named McDonald, can the McDonalds Corporation limit your ability to use your own name in your business? And how do trademark rights differ from copyright? There are many myths and misunderstandings regarding the concept of trademark; we hope to clear some of these up with this article.

The term trademark only dates to 1838, but the concept is far older. Traditionally, a craftsman would mark his products with a distinctive sign, so that customers could recognize his handiwork. This principle is the basic one behind the modern concept of trademarks, distinctive signs that identify a particular product or service.

Most commonly, trademarks are brand names or logos, but many other things can fall under the definition of trademark. Trademarks can include words, phrases, graphic symbols, shapes, sounds, letters, numbers, titles, fictional characters (e.g., the Maytag repairman) unique packaging (e.g., the Coca-Cola bottle), décor, and clothing. These last are often called trade dress.

Another term one often hears is service mark. A service mark is identical to trademark in all respects, except that it denotes a service provided instead of a product. Throughout this article the term trademark is assumed to include service marks and the term product to include services.

A key concept in trademark law is distinctiveness. The point of trademark law is to distinguish the products of one company from another. A trademark must be unique enough so that it can reasonably used as an identifier for the specific product.

What can be protected under trademark law?
To be protected, a trademark must be distinctive. Inherently distinctive trademarks include:

• Unique logos or symbols

• Words coined as product names (e.g., Kodak)

• Fanciful or arbitrary marks that are imaginative or surprising in context (e.g., Guess? jeans or Penguin Books)

• Suggestive or evocative marks that cleverly connote some aspect of the product (e.g., Roach Motel insect traps or Presto Valet dry cleaning)

Many product or business names, however, are not inherently distinctive. These include products named after:

• People (e.g., Joe’s Diner)

• Places or geographical references (e.g., Northern Plumbing Supply); but geographic names arbitrarily chosen to evoke images of a region can be distinctive, e.g., Arizona Iced Tea

• Ordinary descriptive terms (e.g., fair and balanced)

• Generic names for classes of products (e.g., Raisin Bran)

Generic names cannot fulfill the basic function of a trademark—that of distinguishing one’s product from those of one’s competitors. Makers of raisin bran cereal, for example, distinguish their product by adding their company name (e.g., Post Raisin Bran, Kellog’s Raisin Bran). Microsoft is currently in litigation trying to protect its Windows trademark from a Linux software manufacturer who claims that the word windows was in use to describe a layered user interface long before Microsoft produced their operating system and therefore others are free to use that term.

Non-distinctive names are less likely to be protected. If you own Speedy Delivery Service, there is probably little you can do to prevent a competitor from using the word speedy in their advertisements. Names that start out as non-distinctive may, however, attain distinction through public recognition or long use. A good example is Ben and Jerry’s ice cream.

Some types of trademarks are flatly prohibited or reserved. These include trademarks that:

• Are immoral, deceptive, or scandalous

• Disparage or falsely connect another person or institution with the product

• Comprise the flag, seal, or other insignia of the United States, the several states and municipalities, foreign nations, or simulate these things

• Use the name, likeness, or signature of a living person (or a deceased US president during the life of the widow) unless written consent is obtained

• Are likely to be confused with previously registered trademarks.

There are several situations where a trademark cannot be protected or loses its protected status. The most common ones are:

• Abandonment. When a product is discontinued and the trademark is not shifted to another product by the same manufacturer the trademark is no longer enforceable. In the United States, after three years of non-use a trademark is presumed to be abandoned. After that date, the original owner must prove that they had an intention to resume use of the mark in order to maintain protection.

• Genericide. The process of a trademark becoming the common name for an entire class of products is known as genericide. Once a trademark becomes a generic it is no longer protected. Cellophane, escalator, and thermos were all once trademarks but have lost their protection through genericide.

• Likelihood of Confusion. A trademark will not be registered or will lose its protection if it is deemed to be likely to cause confusion with other, existing trademarks.

• Weak Marks. These are simple descriptive terms, geographical descriptors, and surnames.

• Functional Features. This applies to product shapes or packaging. Trademark protection does not apply to functional aspects of the product. To the extent that the shape or packaging of a product is derived from its function, it cannot be protected. The shape of an automobile, for example, that is determined by efficiencies of aerodynamic flow cannot be trademarked. But features that are not determined by engineering principles, such as the distinctive grill of a BMW, can be trademarked.

When does trademark protection start and how long does it last?
Protection starts when the product bearing the mark hits the market. In the United States companies can file intent-to-use applications with the Patent and Trademark Office, in which case protection starts when the application is filed. If a company files an intent to use application, it generally has up to three years to market a product bearing the trademark.

Since trademark protection in the United States is federal, the commercial use the product is put to must be such that Congress can regulate it (i.e., it is or affects interstate or international commerce). Most businesses fall within this boundary (e.g., a restaurant that has serves patrons from out of state or a bicycle messenger service that delivers items originating from out of state), but occasionally there may be a product or service that is truly local, in which case its trademarks would not qualify for federal protection.

Unlike copyright, some US states have their own trademark laws. These, of course, vary from jurisdiction to jurisdiction.

Unlike patents and copyrights, trademarks are of potentially unlimited duration. The protection is perpetual, unless lost through abandonment or genericide. Registration, however, is of limited duration. Once registered, a trademark remains on the official register for ten years (20 years if registered before November 1989). Registrations can be renewed an indefinite number of times.

Who owns a trademark?
In the United States, the first to use a trademark is the owner. In most other countries, however, the first one to register the trademark is the owner.

What are the symbols that denote trademark status?
There are three major symbols used to denote the fact that a name or logo is trademarked. The first two are the TM and SM symbols, for trademark and service mark, respectively. These are used for unregistered trademarks. Anyone can slap a TM on their product name. The use of these symbols is not required for trademark protection, but their use can increase the amount of damages awarded if a violation is found to have occurred since the offender has less credibility in claiming they were unaware of the trademark.

The ® symbol, however, is different. This can only be used on trademarks that have been registered with the US Patent and Trademark Office. Failure to use the ® symbol on registered trademarks can result in a decrease of the protection afforded them.

Is there “fair use” for trademarks?
Yes. But first one must understand that trademark protection only extends to commercial contexts involving similar products. Outside of the product’s commercial context, one is free to use the trademarked words and phrases. Apple Computer has trademarked the term Apple, for example, but that does not keep the rest of us from using that word to refer to the fruit or in phrases like the apple of my eye. But if we were to sell computer products under that name, a lawsuit would quickly follow and no doubt be successful.

Even in the commercial context, though, there are situations where it is permissible to use a word or phrase that has been trademarked by another, even by a competitor. These include:

• Descriptive uses. If the trademarked term is descriptive, others can use it. For example, a candy maker can use the word crunch in their advertising without incurring a lawsuit because of the competing Nestlé Crunch bar.

• Comparative advertising. A company is allowed to name competing products in its advertising for comparative purposes.

• Journalism and commentary. Media stories are free to use the trademarks to refer to the products in articles and accounts.

• Parodies. One can make a joke about Microslack Windoze for example without fear.

The common theme in all these instances of fair use is that there is little chance of a customer confusing these uses with the company’s own products or advertising. Deceptive use of another’s trademarks is generally forbidden.

Fair use does not, however, extend to unlimited use of your own surname. One does not have an unalienable right to open a business under one’s own name. Someone with the name McDonald, for example, does not have the right to open a restaurant with that name because of potential confusion with the fast food chain.

Are there international trademark rights?
No. Unlike copyright, there is no body of international law that governs trademark. The laws can vary widely from country to country and registration in one country has no bearing on use in another. Occasionally, two nations will have signed a treaty that extends trademark rights in one nation to the territory of the other, but usually a company has to establish separate trademark rights in each of the countries where its products are marketed.

There is the World Intellectual Property Organization (WIPO) which centrally registers trademarks from its member states. But registration with WIPO is a courtesy and member states are not obligated to extend protection for WIPO registrations. All European Union countries are members of WIPO; the United States is not.

US trademark law does, however, recognize foreign trademarks that have achieved widespread international fame (e.g., Wimbledon).

So, does trademark law limit one’s ability to express oneself or to use specific words and phrases? Outside of advertising and other commercial communications, not to any significant degree. Trademark does not give ownership of words and phrases to particular individuals. Instead, it permits vendors to differentiate their products from those of their competitors in the marketplace and nothing more.

Word of the Month: Soviet

1 November 2003

The October Revolution is famous the world over. In October of 1917, Lenin and his followers seized control of the government of Russia, ushering in 75 years of Communist rule. But few today realize that the October Revolution actually happened in November. Tsarist Russia had not converted to the Gregorian calendar and while by traditional Russian reckoning the revolution took place in October, from the perspective of the rest of the Western world it happened in November. One of the first acts of the new Communist government was to change the calendar to bring it in line with the rest of the world.

So in honor of that event some 86 years ago this month, our word of the month is:

Soviet, n. & adj., an elected council that performs governmental functions. English use dates from 1917. Soviets operated at all levels of government in the Soviet Union, the highest being the Supreme Soviet or national legislature. The word literally means council in Russian. The noun was also used to mean a citizen of the Soviet Union. As an adjective, it is used to denote things associated with the Soviet Union.

The following terms are (mostly) of Russian origin or inspiration and are all associated with the Communist era. In English usage, these words are not obsolete or obsolescent; instead they still are very much in use. They are what lexicographers would call historical. They are only used in reference to the past.

Unless otherwise stated, the dates given are the term’s appearance in English usage. In most cases, the use of the word or term in Russian is older and often is not especially associated with Communism, but rather simply denotes some aspect of Russian culture or society. But in English usage, all these terms carry connotations of the Communist era.

Agitprop, n., agitation and propaganda, from the Russ. agit[átsiya] + prop[agánda], 1934. Agitprop was originally a department of the Russian Communist Party’s Central Committee with local branches.

Apparatchik, n., a Communist agent or spy, from the Russ. apparat + -chik, 1941. Apparat was borrowed into Russian from the German and was used to denote the Communist party machine.

Bolshevik, prop.n., a member of the Communist Party, from the Russ. meaning member of the majority, an early name for the Russian Communist party, 1917. Later meaning a person with subversive views, 1926. This name for the Communist Party was coined in Russian in 1903 when a vote during the second congress of the Russian Social-Democratic Workers’ Party gave Lenin’s faction a temporary majority. The party subsequently split, cf. Menshevik.

Cheka, prop.n., Russian secret police organization that existed from 1917-22, acronym from the Russ. Chrezvycháĭnaya Komíssiya or Extraordinary Commission (for combating Counterrevolution, Sabotage, and Speculation). In English use from 1921. Also chekist, a member of the Soviet secret police.

Comecon, prop.n., economic association of the Communist nations of Eastern Europe, acronym for the Council for Mutual Economic Assistance, the English name of the organization translated from the Russ. Ékonomicheskoĭ Vzaimopomoshchi, 1949.

Comintern, prop.n., the international wing of the Russian Communist Party which existed from 1919-43, an acronym for Com[munist] + Intern[ational], or Komintérn in Russian.

Commissar, n., a Communist Party member responsible for political indoctrination of a group, esp. a military unit, from the Russ. komissár, 1918. More general use of the term to mean one charged to act as a representative dates to the 15th century and is from the French commissaire, but the specific Communist sense is a re-borrowing from the Russian.

Cosmonaut, n., an astronaut, esp. a Russian one, from the Russ. kosmonaut, or space sailor, 1959.

Disinformation, n., deliberately false information, esp. that provided by a government to the media, calque of the Russ. dezinformatsiya. Russian word coined in 1949, English use from 1955.

G.R.U., abbrev., the foreign intelligence organization of the Soviet (now Russian) Ministry of Defense, the counterpart of the American Defense Intelligence Agency (D.I.A.), from the initials of Glavnoye Razvedyvatelnoye Upravlenie or Main Intelligence Administration.

Glasnost, n., a policy of being open to public scrutiny. The Russian word first appears in the 18th century in the sense of publicity. The sense of openness is first used by Lenin. It was used again in 1969 by Aleksandr Solzhenitsyn. The first use in English dates to 1971 in reference to Solzhenitsyn’s use of the word. In 1985, Mikhail Gorbachev declared that glasnost was an official policy of the Soviet Union.

Gulag, n., the Soviet system of labor camps and prisons, an acronym of glavnoe upravlenie ispravitel’no-trudovykh lagereĭ or Chief Administration for Corrective Labor Camps, 1946.

Intelligentsia, n., the intellectual elite of a society, from the Russ. intelligéntsiya, 1907.

Intourist, n., the Soviet state travel bureau, responsible for foreign visitors and tourists, from the Russ. Inturíst, abbrev. of inostránnyĭturíst, foreign tourist, 1932.

K.G.B., abbrev., Soviet intelligence and secret police organization (1954-91), abbrev. for Komitet Gosudarstvennoĭ Bezopasnosti or Committee of State Security. English use dates to 1960.

Kalashnikov, n., a Soviet-manufactured assault rifle, after its inventor, Mikhail Timofeevich Kalashnikov (b.1919). His most famous design is the AK-47, or Avtomat (automatic) Kalashnikov design of 1947. English use of Kalashnikov as a name for the rifle dates to 1970.

Komsomol, n., Communist youth organization, acronym for Kommunistícheskiĭ Soyúz Molodëzhi or Communist Union of Youth, 1934.

Kremlin, n., the medieval fortress in the center of Moscow that houses the upper echelons of the Soviet (now Russian) government. English use is from 1662 and is borrowed from French, which in turn is from the Russ. kreml or citadel. Hence Kremlinology, the study and analysis of the Soviet government, particularly by Western intelligence services, 1958.

Kulak, n., a well-to-do farmer from pre-revolutionary times, later a peasant who grows food for profit, from the Russ. word for fist, signifying a tight-fisted person, in English use from 1877.

Kulturny, adj., cultured, civilized, 1955; its opposite is nekulturny, unenlightened, boorish, 1959.

Liquidate, v., to make someone disappear, to murder, from the Russ. likvidírovat´ to liquidate or wind up one’s affairs, 1924. The legal and business senses of the term date to the 17th century and are directly from Latin, but the sinister sense is from the Russian usage.

Menshevik, prop.n., a more moderate faction of the Russian Social Democratic Workers’ Party than the Bolsheviks, from the Russian for member of the minority, in Russian use from 1903, English use from 1907. The Menshevik Party was suppressed in 1922.

MiG, abbrev., a Soviet aircraft design bureau responsible for the creation of a number of Soviet fighter aircraft or aircraft manufactured by that bureau, abbreviation for the names of M[ikoyan] + i (and) + G[urevich], the heads of the bureau, 1942.

Molotov cocktail, n., a makeshift incendiary device consisting of a glass bottle or other breakable container filled with gasoline and stopped with a cloth fuse, 1940. Probably from the Finnish Molotovin koktaili, and used by Finns against Soviet tanks. Named after Soviet Foreign Minister Molotov, who led the disastrous 1939-40 winter campaign against Finland. (Despite overwhelming superiority in numbers, the Soviets suffered horrific losses at the hands of the Finns, but eventually did win through sheer numbers.) Also, Molotov breadbasket, a WWII-era term for a container filled with scatterable bombs, probably from the Finnish Molotovin leipäkori, after a speech in 1939 where Molotov said he would bring bread, not bombs, to Finland. Molotov was the revolutionary name of Vjačeslav Mihajlovič Skrjabin (1890-1986), molot is Russian for hammer.

-nik, suffix, meaning one who is characterized by the preceding word, borrowed into English from the Yiddish, which in turn acquired it from Russian. Productively used in English since 1945, usually humorously or pejoratively, e.g., beatnik (1952), peacenik (1965).

N.K.V.D., abbrev., Soviet secret police organization, from the Russ. Naródnyĭ Komissariát Vnútrennikh Del or People’s Commissariat of Internal Affairs. Created in 1918, it assumed overall control of the state security apparatus in 1934. It officially ceased to exist in 1946, but its head, Lavrentii Beria, continued to control the secret police until his execution in 1954 and the creation of the K.G.B. English usage of the term dates to 1942.

Nomenklatura, n., the Communist Party elite of the Soviet Union and its Eastern European satellites who held positions of privilege, from the Russian, literally those who are appointed (named), 1959.

O.G.P.U., abbrev., Soviet secret police organization (1923-34), acronym for Ob´´edinënnoe Gosudárstvennoe Politícheskoe Upravlénie or United State Political Directorate, 1923. Also spelled Ogpu.

Orwellian, adj., characteristic of the writings of George Orwell (a.k.a., Eric Blair, 1903-50), particularly of his novel 1984, characteristic of a totalitarian state as envisioned that novel, in use since 1950.

Perestroika, n., from the Russ., literally restructuring. In English it refers to the political and economic reforms attempted in the final years of the Soviet Union. A policy of perestroika was first proposed at the 26th Party Congress in 1979 and implemented under the leadership of Mikhail Gorbachev starting in 1985. English use dates to 1981.

Politburo, n., the highest policy-making organ of a Communist Party, esp. that of the Soviet Union, officially the politburo was a Party organ but had the de facto control of the government, from the Russ. politbyuró, abbreviation of polit[ícheskoe] (political) + byuró (bureau), 1927. Also politbureau.

Pravda, prop.n., the newspaper of the Soviet (now Russian) Communist Party, from the Russian word for truth.

Presidium, n., the standing committee that presided over the Supreme Soviet, the highest organ of government it was de facto subordinate to the Communist Party, from the Russ. prezídium, which in turn is after the Latin præsidium or garrison, 1924.

Refusenik, n., a Soviet Jew denied permission to emigrate to Israel, partial calque of Russ. otkáznik, from otkazát’ (to refuse) + -nik, 1975.

Resident, n., an intelligence agent stationed in a foreign country, calque of the Russ. rezidént, 1963. Also sometimes spelled rezident in English usage.

Samizdat, n., the clandestine copying and distribution of writings and literature, an underground press, the writings published by clandestine means, from samo- (self) + izdát[el´stvo] (publishing house), 1967.

Smersh, n., popular name of a Russian counterintelligence organization that operated during WWII, abbrev. of smert´ shpionam or death to spies, 1953.

Sputnik, n., an artificial satellite, specifically the first artificial satellite launched 4 October 1957, literally traveling companion, from s + put´ (way, journey) + -nik, 1957.

Stavka, n., the Russian army’s general staff, from the Russ. stavit´, to put, place, 1928.

Tamizdat, n., subversive writings published abroad and then smuggled into the Soviet Union, from tam (there) + izdat[’el’stvo] (publishing house), 1974, cf. samizdat.

Tass, prop.n., the official Soviet news agency, acronym for Telegrafnoe agentstvo Sovetskogo Soyuza, Telegraph Agency of the Soviet Union, 1925.

Totalitarian, adj., pertaining to a system of government where all individuals and institutions are completely subordinated to the will of the state, calque of the Italian totalitario, 1926.

Tovarich, n., form of address, from the Russ. továrishch or comrade, 1918. Also tovarish.

U.S.S.R., abbrev., official name of the Soviet Union, Union of Soviet Socialist Republics, from the Russ. Soyuz Sovetskikh Sotsialisticheskikh Respublik, 1927. Often seen as the Cyrillic C.C.C.P.

Zek, n., a prisoner of the Gulag, probably formed in an attempt to represent the pronunciation of z/k, an abbreviation of zaklyuchënnyĭ or prisoner.

Dept. of Legal Affairs: Intellectual Property, Part 1: Copyright

1 October 2003

In this two-part article, we will examine the two types of intellectual property that relate to language, copyright and trademark. There are two other types of intellectual property, patent and trade secrets, that apply to physical inventions and commercial business information.

The point of intellectual property laws is to encourage the advancement of the art, science, and commerce by giving the creators of original works, ideas, and products a limited period within which they can exercise exclusive control over their works and derive profit from them.

The first of these type of intellectual property is copyright, the right of an owner of a creative work to keep others from using it without permission. The term dates to 1735, when the British Parliament passed the first laws granting this right to authors. In the United States, the concept of copyright flows from the Constitution, which in Article I, Section 8 gives Congress the power “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.”

The first important concept to understand regarding copyright is the difference between an idea and the expression of an idea. Copyright only covers the latter. J.K. Rowling, for example, owns the copyright to the Harry Potter books. One cannot copy the text (the expression of her ideas) without her permission. But one is free to write one’s own book about a boy who attends a school for wizards and battles an evil sorcerer who killed the boy’s parents. The idea is not protected; the expression is.

What can be copyrighted?

There are limits on what copyright extends to:

• The work must be original. It must be created, not copied from somewhere else.

• The work must be in tangible form, e.g., on paper, canvas, film, clay, etc. If the idea remains in the author’s head or is simply performed without a script and without taping or filming the performance, then it cannot be copyrighted.

• The work must be creative. Creating an electronic version of an public domain text, for example, is not sufficiently creative; it is simply a mechanical function. One cannot then claim copyright on the electronic version. Translating a text into another language, however, is a creative act. One can claim copyright on the translation.

• The work cannot be the creation of the US federal government. By law, the federal government is prohibited from holding copyright. (It can hold patents.) Anything produced by the federal government is in the public domain.

• Fictional characters can be copyrighted independently of the works they appear. The more specific or developed the character is, the greater the chance of protection. The character of James Bond, for example, is copyrighted. One can write a novel or film a movie about a dashing British secret agent without infringing, but if that spy drives an Aston Martin, drinks shaken, not stirred, vodka martinis, and favors a Walther PPK as a sidearm, it is probably infringement.

• Product design and computer software can be protected by both copyright and patent. Patent protection does not last as long as copyright, but the protection is broader. Patents cover the idea, not just the literal expression.

• Indecent or immoral works cannot be protected. In practice, however, explicit or pornographic works are considered protected unless a court in an infringement lawsuit rules that they are in fact indecent or immoral.

When is a work copyrighted?

A work is copyrighted the moment it is set down in tangible form. One does not have to register the work or even to mark it with the © symbol, although these acts will make it easier to recover monetary damages if a lawsuit is filed.

Under older copyright laws, the work had to be explicitly marked with the © symbol or words stating that the work is under copyright. This is no longer the case.

Who owns the copyright?

In general, the author of the work is granted copyright. For purposes of copyright law, the term “author” refers to the creator. Painters, sculptors, software engineers, and composers are all authors. The exception to this is if the work is created as a work for hire. The author of a work for hire is the person or corporation that commissions the work. A work for hire is one that is:

• Created by an employee in the course of their job.

• Commissioned. It is considered a work for hire and the copyright is owned by the commissioning party if a written work for hire agreement is signed and it falls into one of the following nine categories:
  

  • It is a contribution to a larger, collective work.

  • It is part of a motion picture, e.g., a screenplay.

  • It is a translation.

  • It is a supplement to another work.

  • It is a compilation of other works.

  • It is an instructional text.

  • It is a test.

  • It is an atlas.

  • It is a sound recording.

Can a copyright be sold or transferred?

Yes. Intellectual property like any other form of property can be transferred or sold. But there are some differences between copyright and physical property. Copyright actually consists of several subrights. These are the right to:

• Reproduce the work.

• Display or perform the work in public.

• Distribute the work.

• Prepare derivative works (e.g., film rights to a novel).

When all the rights to a work are transferred unconditionally, the rights are assigned. Typically, when an author writes a book the rights are assigned to the publisher in return for royalty payments. Transfer of individual subrights are known as a license. Licenses can be exclusive or non-exclusive.

How long does a copyright last?

Works published after 1 January 1978 are copyrighted for the life of the author plus 70 years. Works for hire and works created anonymously are protected for a period between 95 years from the date of publication or 120 years from the date of creation, whichever comes first.

For works published before 1978 the following applies:

• Works published before 1923 are in the public domain.

• Works published between 1923 and 1963 that have not had their copyright renewed are in the public domain.

• Works created before 1978 but not published until after 2002 are in the public domain.

• Works published between 1923 and 1963 that did have their copyright renewed are protected for 95 years from the date of publication.

• Works published between 1964 and 1977 are protected for 95 years from date of publication.

• Works created before 1978 but published between 1978 and 2002 are protected through 2047.

Can one legally use a copyrighted work without permission?

Yes, under limited circumstances. This is called fair use. Fair use covers such things as quoting a work in an academic journal, making a taped copy of a CD one has purchased to play on one’s car stereo, brief (e.g., less than 30 seconds) samples of musical performance. Fair use is a defense used when a lawsuit is brought for infringement. One cannot determine precisely whether or not a particular use is fair until it has been adjudicated, but there are some guidelines and rules of thumb based on judicial precedent. Whether or not a particular use is fair depends on four factors:

• The purpose and character of the use, e.g., commercial or non-commercial. Not-for-profit educational uses are more likely to be considered fair use than commercial uses. If the purpose of the use is to transform or add creative value, as in a literary criticism or a parody, it is more likely to be a fair use.

• The nature of the copyrighted work. Copying an informational, as opposed to an entertaining, work is more likely to be considered fair use. Use of a clip from a news broadcast is more likely to be considered fair use than a clip from a movie.

• The amount used relative to the work as a whole. There is no hard and fast rule how much can by used without permission, but quoting up to 250 words from a book-length manuscript or sampling less than 30 seconds of a song is generally considered fair use. The amount acceptable as fair use can also be influenced by the purpose of the use. The amount allowed to be quoted in an academic book or journal is generally held to be larger than that quoted in a trade book (usually 500 words from a book-length manuscript). In some cases, an entire work can be copied, as in recording a television program for later viewing or “ripping” a music CD that one has purchased so that it can be played on an MP3 player.

• The effect on the market value of the copyrighted work. The more likely a use is to diminish the commercial value of the original work, the less likely it is to be fair use.

What happens to those who infringe on copyrighted works?

The recourse a copyright holder has is to file a lawsuit to prevent further violation and collect monetary damages. There are several defenses against copyright infringement. These include:

• Statute of limitations. If three years has passed between discovery of the infringement (or when it should reasonably have been discovered) and the lawsuit, the suit can be dismissed.

• The infringement is fair use.

• The infringement was innocent—the infringer had no reason to know that they were violating copyright, e.g., there was no copyright notice placed on the work. In such cases, the infringer is typically ordered to cease infringing, but pays no monetary damages.

• There is no infringement. The copier is either has a license or created the work independently.

There are also provisions for criminal prosecution of copyright violations.

Does copyright apply internationally?

Usually. There are several treaties that govern international enforcement of copyright. The most important of these is the Berne Convention, which is signed by over 100 countries, including all of the major industrialized states. Under the Berne Convention the signatories pledge to enforce the copyrights of other signatories. The details of protection can vary from country to country. The length of copyright under the Berne Convention, however, must be at least the life of the author plus 50 years and copyright must be automatic (no registration required).

Within the United States, copyright law is federal and uniform. There are no state copyright laws.

Book Review: Mighty Fine Words and Smashing Expressions

1 October 2003

Do you know the difference between crisps and chips? How about between a boot and a trunk? Or between an identity parade and a lineup? The difference is that in each case the first term is British and the second is American. Otherwise, they are the same.

Mighty Fine Words and Smashing Expressions, by lexicographer Orin Hargraves, is a must-have book for anyone interested in the differences between the British and American dialects. Hargraves systematically documents and explains these differences. 

Chapter one addresses spelling and morphological differences, such as the American tendency to use a single L where the British would use LL as in woolen/woollen or ending words in –og or –ogue, as in analog/analogue. The next chapter deals with variations in word choice, such as the American tendency to use around where the British tend to use about.

Then we come to the core of the book. The next nine chapters address various aspects of life and society and document the linguistic differences between American and British vocabularies. There is a chapter on money and business, one on government and law, on sports, medicine, and education. Every major aspect of life in either country is covered.

In addition to simply documenting the vocabulary differences, Mighty Fine Words is useful as a cultural guide as well. For example, the book does not simply say that the US House of Representatives and the US Senate correspond roughly to the British House of Commons and House of Lords, but it also describes the fundamental rules of these bodies and how the legislative process works in each country. The rules of baseball and cricket are compared and contrasted as is the difference in the “news” covered by the Sun v. the National Enquirer. And the process by which doctors are educated in both countries is described.

Hargraves has done yeoman’s work in the research. Inevitably, when one writes a book of this broad scope there are bound to be a few errors. For example, Hargraves identifies the cloture rule with the US House of Representatives when it is really a term with significance in the Senate. But these errors are few and minor.

Also of value is that Hargraves takes a culturally neutral stance. This is a book that will be valuable on both sides of the Atlantic. He does not simply seek to explain Britain to Americans or America to the British, but he explains the language to audiences on both sides of the pond.

This book deserves a space on the shelves of word lovers in both Britain and North America and the copies purchased will quickly become well-thumbed and creased from continual reference.

Hardcover, 320 pp., Oxford University Press, November 2002, ISBN: 0195157044, $27.50.