Infringing Your Own Style? Publisher Sues Illustrator and Competiting Publisher for Copyright Infringement
Thomas Nelson, Inc. v. Zondervan Corporation et al No. 3:2009cv01097 (Filed Nov. 13, 2009, M.D.Tenn.)
It is a chronic problem in copyright cases that the author/creator gets wedged in a dispute with an early buyer of their work because that buyer claims her later work infringes what the first buyer thinks they bought. The facts reduce to a short equation: author/artist assigns copyrighted content to a publisher; and later sells separate, differently expressed copyrighted content to a second, later buyer. The first publisher claims that that later work “infringes.” The lead case on point is Fogarty v. Fantasy Records, 510 U.S. 517 (1994).
The most recently filed case on the topic was filed by Christian publisher Thomas Nelson Inc. against another Christian publisher Zondervan Corp and illustrator Meredith Johnson. Plaintiff hired Johnson under a work-for-hire agreement to provide drawings for the children books series “Gigi, God’s Little Princess.” Plaintiff claims that Johnson breached her contract with him by providing allegedly similar illustrations for a book series entitled “The Princess Twins” published by competitor Zondervan. Plaintiff also claims copyright infringement and unfair competition.
The fly in the ointment is that the illustrator, in the document that effected the copyright assignment of the first work, also agreed to not publish artwork that “in any manner would compete or conflict with” the rights granted to Plaintiff Thomas Nelson.
Ouch! That would be a sentence that might have been captioned “You will need a wholly different style for future works”.