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No shortage of Eckler hecklers in copyright suit

I've been following with some interest the lawsuit that Rebecca Eckler, author of the book Knocked up', is contemplating against the producers of the film of the same name.

It grabs my attention not because Eckler's book is good according to reviews I've read, it is excruciatingly bad but because I am always intrigued by lawsuits that allege copyright infringement.

Eckler tells the story in her own words in the June 11 edition of Maclean's magazine. And you might almost begin to feel sorry for her, if you haven't read the other articles on this topic that are out there.

Of these, my favorite commentary comes from Craig Welsh in his Townie Bastard blog, who writes:

"Eckler is suing Judd Apatow, the director of the recently released Knocked Up, which by staggering coincidence, is the exact same title of Eckler's first book. It's also a phrase that's been in use, according to some reports I've read online, since the early 1800s. Eckler believes there are enough similarities in her book that makes it obvious that Apatow clearly robbed it from her and created a now very popular, very critically acclaimed movie. How are they alike? They are both about a woman who gets pregnant after having sex. Wow. Yes, there are other supposed similarities, but they are honestly some of the weakest similarities I've ever heard."

It's a funny blog entry and yes, there are more than a few similarities between Eckler's book and Apatow's movie; the most telling being the cover of the screenplay itself, which rips off the image from the cover of Eckler's book (a martini glass with a baby pacifier around the stem). And there are enough similarities in the story both lead characters are journalists, for example to suggest that perhaps Judd Apatow did read Eckler's book.

But the only case that can be made is that, perhaps, Apatow was inspired by the book. He didn't copy it. For one thing, Apatow's script is witty and funny, whereas Eckler's book is god-awful bad (according to the reviews).

Proving copyright infringement is downright impossible in this case. As Eckler herself notes toward the end of her essay, "You can't copyright a title, or an illustration. Morally, I may be right. Maybe Apatow did read my book. But technically? Copyright infringement is difficult to prove."

She doesn't quite get it right, and that's Eckler's problem. The point is, you can copyright an illustration, just as you can copyright a book or photograph, but only in its precise original form. You cannot copyright the idea of your book, photograph or illustration.

I learned this lesson the hard way, whilst working in the advertising agency business. In the competitive bidding process, we would submit brilliant proposals to clients. We didn't always win, which was okay, but we were galled to observe, on occasion, that our unsuccessful concepts had found their way into the client's advertising campaign. I am sure every ad agency has experienced this vexing scenario at least once. However, there is nothing you can do about it (and our agency had the legal bills to prove it). The idea had been reworked graphically, so that it no longer existed in its original form.

A perfect example of an idea being stolen without consequence is Life of Pi, the award-winning novel by Yann Martel, who freely admits that he lifted the plot idea for his book from that of Brazilian author Moacyr Scliar. Both books involve a protagonist who is adrift at sea in a small boat, with a large, predatory cat for company. There was talk of a lawsuit but nothing came of it, presumably because Scliar and his publisher received a briefing on copyright law. I have not read either work, but I understand that Martel's is superior to Scliar's and that, while the plot outline is similar, his allegory is very different.

As one who has participated in numerous creative development teams, I do know that concepts are often generated while browsing through other creative material. The idea is not to copy, but to look for inspiration. A great photo or clever phrase may trigger a brilliant idea that has little or nothing to do with its inspiration. This is perfectly legitimate. However, once the idea has been outlined, it is always wise to revisit the inspiration to confirm that you aren't ripping off an idea. In situations where this is not clear, my preference is to scrap the idea even if copyright laws would permit its use.

Incidentally, while reading the June 11 issue of Maclean's, I came across an article about the practice of extracting quotes from critical reviews for promotional use. In England, it is now illegal to twist the meaning of a writer's words by using them selectively to make a review sound positive'.

The article offers, as an example, the review by a London theatre critic who had this to say about Saturday Night Fever: "If it's an all-out retro-romp you want, this only fitfully delivers."

The show's producers changed his intent more than a little with this advertising blurb: "An all-out retro-romp".

I did a search for examples closer to home and came full circle when I found this Quill & Quire item about reviews for Rebecca Eckler's latest book, Wiped.

From the publisher's press release we have this:

"This mommy memoir feels like a humorous crash course in maturity." Publishers Weekly

And here is the comment in its original context:

"Sometimes this mommy memoir feels like a humorous crash course in maturity, though at other points the author's attitude comes dangerously close to that of one who has a baby as a chic accessory."

If you are a sucker for punishment, follow this link to Rebecca Eckler's thoroughly self-absorbed blog.

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