The AP reports:
A former South Dakota lawmaker convicted of raping his two foster daughters has sent news organizations what he claims is a copyright notice that seeks to prevent the use of his name without his consent.A letter and an accompanying document labeled “Common Law Copyright Notice” said former state Rep. Ted Alvin Klaudt is reserving a common-law copyright of a trade name or trademark for his name. It said no one can use his name without his consent, and anyone who does would owe him $500,000. [The letter said anyone seeking to use Klaudt's name would have to file a written request 20 days in advance.... [Sentence moved. -EV]]
Klaudt was convicted in 2007 on four counts of second-degree rape for touching his teenage foster daughters’ breasts and genitals in phony examinations he said could help them sell their eggs to infertile couples. He was sentenced to 44 years in prison for rape and 10 more years after pleading guilty to two counts of witness tampering….
That’s legally wrong on so many levels: Short words and phrases can’t be protected by federal copyright law; common law copyright has been almost entirely preempted by federal copyright law, and in any event was applicable only to unpublished works; copyright of any sort would only apply to your own creative work, and Ted Klaudt’s name wasn’t created by him (unless it’s an assumed name); fair use would in any event allow people to use the name to refer to him, if there was a copyright claim to begin with, which there isn’t; and trademark law doesn’t preclude uses of a trademark in an article to refer to the trademarked item.
Thanks to How Appealing for the pointer.
LarryA says:
Too bad they can’t nail him for attempting to profit from his crime.
We had some “common law” folks around here a while back. Klaudt is the kind of radical that gives that sort a bad name.
December 16, 2009, 12:37 pmLTEC says:
A bit off-topic, but isn’t this sentence absurdly long? Don’t most people convicted of first-degree, violent rape (or “rape rape” as Whoopi would say) receive much shorter sentences?
December 16, 2009, 12:41 pmAnym_Avey says:
Klaudt was in a position of trust, and was convicted on four counts against two apparently underage victims. Is eleven years per count a harsh sentence under these circumstances?
December 16, 2009, 12:50 pmLTEC says:
I would say 11 years per count is indeed harsh, but that is not my main complaint. I am comparing this sentence with typical ones. My question is: does a violent rapist typically receive 11 years per count (and how many “touching” counts are there in a rape?), or much more, or much less?
December 16, 2009, 1:07 pmmbsch13 says:
Actually, this story is not very newsworth, except for the fact that it involves a former state legislator. This attempt to copyright a name is a fairly routine practice floating around the prisons, along with prisoners attempting to use the UCC to take a security interest in themselves and filing UCC liens against judges, attorneys, etc.
December 16, 2009, 1:15 pmChris Travers says:
He could create a painting or other audiovisual work of art portraying his name and copyright that, I suppose…..
December 16, 2009, 2:07 pmChris Travers says:
Speaking of trademark issues, I have had competitors try to play dirty games with trademarks in the past (for example insisting that secondary documentation created by a third party for their product must not refer to it under trademarked terms, etc).
This is especially funny when the trademark is more generic than “Gel Cel” was…..
My typical response is “I will go back and verify that all uses of your trademark are properly attributed and will not contribute to any customer confusion.”
December 16, 2009, 2:14 pmOff Kilter says:
I think you’re being to harsh on the guy, EV. After all, is there any reason to suspect he has any competency at understanding legal issues? He was only a LAWMAKER, after all…
December 16, 2009, 2:50 pmASlyJD says:
Chris,
Won’t help. Copyright is only for expression, not the idea contained therein. 17 USC 102(b)
(No, I didn’t look it up for you. I’m writing a paper on the DMCA issues of MMORPG bots.)
December 16, 2009, 4:14 pmBen Sheffner says:
Sure, sure, but other than that, it’s a rock-solid claim…
December 16, 2009, 4:48 pmRichard Gould-Saltman says:
Why didn’t I think of this? Heck, Doc, why didn’t YOU think of it?
Oh, I see.
Isn’t this related to the old musician’s gag? (Robert Klein’s, maybe?) “I’m going to write a song. Middle C. A whole note. That’s it.
The, any time anyone writes a song using middle C, they owe me a royalty! Anyone plays middle C as an EIGHTH note, they’re using an excerpt of my original song! Heck, any time someone writes an E flat, all they’re doing is transposing my original composition!”
Alternatively, any chance this guy’s a confused Neo-Galambosian?
You all have a good holiday!
r gould-saltman
December 16, 2009, 4:56 pmASlyJD says:
Richard,
December 16, 2009, 5:27 pmJust think of the billions who infringe on 4’22″!
Dave N. says:
Ted Alvin Klaudt is a pervert who should rot in hell. There, Ted Alvin Klaudt, sue me. I dare you, Ted Alvin Klaudt. You sick deranged bastard, Ted Alvin Klaudt.
Gee, that was both cathartic and fun.
December 16, 2009, 6:35 pmFreddy Hill says:
But in order to get his consent you have to address the request to him, which you can’t do because you don’t have his consent to use his name. Clever!
December 16, 2009, 7:40 pmCurious says:
Yes, this sentence is extreme. If the girl complained of an itch or a rash, and the foster father did his own amateur medical exam, that would not be a crime. Why is Klaudt’s touching even a crime?
If a father thinks that he needs to look at a possible medical problem in his daughter, does he risk a rape conviction if some prosecutor later decides that his touching was medically unnecessary?
44 years for this is bizarre. There are real rapists who committed violent rapes who have gotten far less.
December 16, 2009, 9:37 pmGeorge S. says:
This is an example of what one author calls copyfraud. See this article:
December 16, 2009, 10:20 pmhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244
State Legislator / Convicted Felon Ted Klaudt Tries to “Copyright His Name” | Liberal Whoppers says:
[...] more here: State Legislator / Convicted Felon Ted Klaudt Tries to “Copyright His Name” Share this [...]
December 17, 2009, 12:04 amElmer says:
Misunderstandings arise when a word has different meanings in different subcultures. Where he says “common law”, read it as “DIY law”.
December 17, 2009, 12:35 amGuy says:
You don’t think the finder of fact thought that the whole “collecting eggs” thing was a pretext to molest them? You don’t think it was a pretext? What have you been smoking?
December 17, 2009, 8:51 amTweets that mention The Volokh Conspiracy » Blog Archive » State Legislator / Convicted Felon Ted Klaudt Tries to “Copyright His Name” -- Topsy.com says:
[...] This post was mentioned on Twitter by Walter Olson, Eugene Volokh. Eugene Volokh said: State Legislator / Convicted Felon Ted Klaudt Tries to “Copyright His Name”: The AP reports: A former South Dak.. http://bit.ly/6yvedi [...]
December 17, 2009, 8:57 amCurious says:
I believe that the guy did something that the jury considered inappropriate, and that I would not have done. But I do question the long sentence, and I question the whole idea of prosecuting something that is so private and inconsequential.
December 17, 2009, 12:49 pmChris Travers says:
Aslyjd:
But at the end he would have a copyright for a work. It just wouldn’t cover what he wanted it to cover.
December 17, 2009, 3:39 pmTed Klaudt, “Short Eyes” | Likelihood of Success says:
[...] “Common law copyright”? [...]
December 17, 2009, 5:24 pmDecember 18 roundup says:
[...] ex-lawmaker claims copyright on his name, threatens legal action” [Boing Boing, Volokh, Randazza/Citizen Media [...]
December 18, 2009, 12:08 amBill Poser says:
A little googling reveals that Klaudt was originally accused of abusing five girls, on multiple occasions, both at home and in the state legislature buildings, with advance planning that included faking emails from a fertility clinic, and that the “touching” included the painful insertion of a speculum into their vaginas. This is not a case of a guy getting his jollies by touching a girl’s breasts. It wasn’t violent, forcible rape, but in terms of the degree of premeditation involved and the trauma to the victims, I would categorize it as worse than many cases of date rape. My only objection to the long sentence is that I’d rather save on taxes and hang the SOB.
December 18, 2009, 1:15 amSTILL More Stupid Criminals « Thoughts of a Random Reader says:
[...] conviction for fondling his foster children, Klaudt is a sick twisted individual or as dave over at Volokh stated it: Dave N. says: Ted Alvin Klaudt is a pervert who should rot in hell. There, Ted Alvin [...]
December 21, 2009, 6:39 amJusticeMinded says:
While the individual’s actions with the young women are certainly inexcusable that doesn’t mean everything he does is equally wrong.
December 30, 2009, 7:37 pmIf I understand the theory correctly he is not copyrighting, for example, “John Smith.” He is copyrighting “JOHN SMITH.”
There’s a difference, allegedly, since the former is a natural way of writing and the second isn’t found in any standardization manuals, so it is a creation. That argument is similar to the reason that the “SciFi Channel” is now “SyFy.” “SciFi” is a common term and can’t be copyrighted; “SyFy” is not standardized spelling for any word(s), so that can be copyrighted.
Is he right? Is he wrong? I don’t know.
I do know that the common law is very real; it is still in the Constitution for the United States, which is the “Supreme Law of the Land.”
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February 28, 2010, 4:21 amKaden Hayes says:
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May 18, 2010, 12:26 pmCourtney Lloyd says:
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July 19, 2010, 5:26 am