Keeping what's yours: basics of copyright laws.

• Author: Spendlove, Gretta
• Position: Of Counsel

What's more personal, more totally "yours" than your memories? Gene Jacobsen was a Japanese prisoner-of-war during World War II and a survivor of the Bataan Death March. After returning from the war, Jacobsen wrote a memoir titled Who Refused to Die, describing the Death March and his years of imprisonment and torture in work camps in the Philippines. In 1997, Deseret Book Company published the first of a five-volume series called Children of the Promise, written by Dean Hughes. The fictional experiences of Wally Thomas, one of the characters in Children of the Promise, closely match Jacobsen's experiences as related in Who Refused to Die.

Jacobsen sued Deseret Book and Hughes for copyright infringement in 1999. The Utah federal district court dismissed Jacobsen's complaint in 2001, on the basis that what was copied constituted historical facts, which cannot be copyrighted, and that the suit was brought too late. The 10th Circuit Court of Appeals reversed that decision in April 2002 and sent the case back to Utah for trial.

Fact or original expression? Although facts cannot be copyrighted, the "original expression" of those facts can be. The appeals court decision compared Jacobsen's and Hughes' descriptions of similar incidents and determined that "The Children of the Promise series contains enough material for a trier of fact [in this case, a jury] to find verbatim copying." The Utah court must now decide if the two works are "substantially similar" and if Hughes and Deseret Book copied a "substantial" portion of Who Refused to Die. If so, Jacobsen could receive damages.

Brent Hatch, of the Salt Lake City law firm Hatch James & Dodge, represents Jacobsen in the lawsuit. Hatch is hopeful that Jacobsen will prevail, but recognizes that "anything could happen," because of the many claims and defenses flying back and forth.

How can businessmen protect themselves from copyright liability? "Anyone using creative work prepared by someone else needs to make sure he has written consent," Hatch advises. "The problem is particularly difficult when the person you contract with has used creative work of a third party. It may not be enough to use a standard form in which the author merely claims the work is his. If you suspect the author has used work of someone else, make sure you get a consent from that third party, too."

Hatch also recommends not relying too heavily on indemnities. "I assume Deseret Book's contract with Hughes contains an indemnity...