I will not be selling the study guide. I want to use it to help my adult students as we study the book together.
A remarkably complex situation, but let me offer a simple answer. If you are not selling, why would ownervof the book copyright care? No loss. Actually might be a benefit to him or her. Not much risk of a kerfluffel. (or is that kerfluffle?).
All comments on this site are 'in the cloud' and do not form an attorney-client relationship of any kind. Just consider them ideas for discussion. J
Yes. See an intellectual property law attorney for guidance on how to do this without infringing on copyrights or trademarks of the author or publisher of the book.
17 USC 107 outlines what is fair use and states:
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Of those factors, 1,3, and 4 would likely fall in favor of your "study guide" being a fair use IF it is done for non-profit educational uses. You figured out the key fact, namely that you won't be selling the study guide (i.e. non-profit) and are using it for students (i.e. educational use) as that seems to fall directly in exception 1.
As to the trademark issue, the statute on infringement is 15 USC 1114, which in relevant part reads:
"(1) Any person who shall, without the consent of the registrant–
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive.
You would not be using the trademarks associated with the book in connection with a sale or offer for sale, and arguably not even a "distribution" as meant by the statute, so you seem to be in the clear. Also, your study guides arguable increase sales of the underlying book rather than decrease such sales, so there are probably no damages for the author or publisher to recover and thus no incentive to object or sue you. Nevertheless, you should do the right thing and have a disclaimer to the effect that your study guide is not licensed by, associated with, nor sponsored by the author or publisher of the book and is strictly for non-profit educational purposes.
Bottom Line: You can do this, just do it in the proper way limited to non-profit educational use and for added protection, insert a disclaimer.
So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.
Attorney Caldwell quite reasonably sees the situation as not needing a legal analysis because, as a practical matter, the owner of the copyright in the book probably doesn't care if you create a very limited edition study guide. Attorney Burdick bypasses the infringement analysis, assuming that your study guide does, and goes right into evaluating whether you can assert the affirmative defense of "fair use" [which he concludes applies]. Both recommend that you speak with your own intellectual property attorney.
Someone else posted a very similar question about study guides. The issue for me then and now is whether your study guide will be a "derivative work" based on the book you're teaching ["derivative work" having its own convoluted copyright law definition]. I suggest you read the responses to that question [ http://goo.gl/j3TsA ], read a court decision discussing whether an "instructors solutions manual" to another's textbook is an infringing derivative work [ http://goo.gl/LqMok (start at page 6)], and then go visit with your own intellectual property to lay out your own particular facts for his or her analysis.
The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
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