{"id":206,"date":"2014-06-18T20:54:01","date_gmt":"2014-06-18T20:54:01","guid":{"rendered":"http:\/\/citeblog.access-to-law.com\/?p=206"},"modified":"2021-12-11T18:12:55","modified_gmt":"2021-12-11T18:12:55","slug":"using-the-bluebook-without-a-license","status":"publish","type":"post","link":"https:\/\/citeblog.access-to-law.com\/?p=206","title":{"rendered":"Using \u201cThe Bluebook\u00ae\u00a9!#%\u201d without a license"},"content":{"rendered":"

In a prior post<\/a> I reported on the erasure of all prior differences between the citation style set forth in the ALWD Guide to Legal Citation<\/em>\u00a0and that prescribed by the work entitled \u201cThe Bluebook: A Uniform System of Citation<\/em>.\u201d Here my focus is on trademark and copyright issues that bear on the competition between these two citation manuals and influence how other works, print and electronic, address issues of legal citation.<\/p>\n

\"bluebook\"<\/p>\n

1. \u201cThe Bluebook<\/em>\u201d \u2013 A registered mark<\/h2>\n

Since 2010 the proprietors of the The Bluebook<\/em> have held a registered trademark in its name. Actually \u201cTHE BLUEBOOK\u201d, \u201cTHE BLUEBOOK ONLINE\u201d, and \u201cTHE BLUEBOOK A UNIFORM SYSTEM OF CITATION\u201d are now all registered \u201cstandard character marks.\u201d The cover of that manual\u2019s most recent edition has the \u201c\u00ae\u201d symbol immediately following the word \u201cBluebook\u201d. So does its title page.<\/p>\n

There are, of course, myriad books of a similar name reaching back several centuries<\/a>. There are also numerous registered marks that include \u201cBluebook\u201d or “Blue Book\u201d. \u00a0 As applied to a legal citation style guide, however, the phrase is surely indicative of a particular source. And while book titles cannot be registered with the Patent and Trademark Office, works of a series (think \u201cNancy Drew\u201d, the \u201cFor Dummies\u201d books, or closer to home \u201cWilliston on Contracts\u201d) are registrable<\/a>. There seems little doubt that successive editions of The Bluebook<\/em> qualify. But what does that mean for the publisher of an ALWD guide that wants the relevant market to know that citations prepared in accordance with its instruction will conform in every particular to those prepared following The Bluebook<\/em>\u2019s rules and appendices.<\/p>\n

It is fact that within its 608 pages this new ALWD Guide to Legal Citation<\/em> makes absolutely no reference to The Bluebook<\/em>. A cover-to-cover search for that phrase comes up dry. Extreme caution over infringing The Bluebook<\/em> mark? Unlikely. In all probability this reflects a strategic choice. It may rest on the premise that naming the competition could be taken as a sign of weakness and a conviction that there are other effective ways to draw attention to this new guide’s relative merits. After all, the prior ALWD edition only mentioned that other manual once (to warn users of differences between the two). Outside the pages of this new edition, the publisher can and does draw attention to the removal of all differences between ALWD style and The Bluebook<\/em><\/a>\u2019s, naming the latter.<\/p>\n

Comparative advertising that names a trademark-protected competing brand does not infringe the mark so long as it does not \u201ccause confusion as to source\u201d (“Same Sweetener AS EQUAL…. At A Sweeter<\/em> Price”). See<\/em> Cumberland Packing Corp. v. Monsanto Co.<\/em>, 32 F. Supp. 2d 561, 580-81<\/a> (E.D. N.Y. 1999).<\/p>\n

\"compare_active\"<\/a><\/p>\n

The largest segment of the market for both works is located in law school student bodies. And within that segment the choice between the two is, in nearly all cases, made by writing faculty or journal editors who, by adopting one or the other, effectively instruct students which to buy. ALWD needn\u2019t put the phrase \u201cThe Bluebook<\/em>\u201d on or in its guide to put its marketing case in front of those intermediaries. Indeed, it is produced under the auspices and direction of the national association of those who teach legal writing<\/a>.<\/p>\n

What about the host of \u201cBluebook<\/em>\u201d study aids or software capable of delivering \u201cBluebook\u201d<\/em> compatible citations? Can they use its name in communicating what they offer directly to law students, legal academics, and lawyers? Yes, but they need to take greater care to prevent consumers from believing that The Bluebook<\/em>\u2019s proprietors have reviewed or vetted or authorized their work.<\/p>\n

\"usersguide\"<\/a><\/p>\n

Hein publishes a small book that used to be called User\u2019s Guide to the Bluebook. <\/em>The title now has a large \u201c\u00ae\u201d appended. The brochure advertising this work is riddled with that symbol and concludes with a footnote reading: \u201c*The Copyright holder\u2019s [sic] of The Bluebook did not contribute to, review, approve, or endorse The User\u2019s Guide to The Bluebook.\u201d Effective, but overkill. Compare the restrained treatment of the trademark status of Microsoft\u2019s spreadsheet software in the guide entitled Excel 2013 for Dummies<\/a><\/em>. On the other hand, Carolina Acadmic Press publishes Understanding and Mastering The Bluebook<\/em> by Linda J. Barris. Neither its cover nor its front matter<\/a> acknowledges The Bluebook<\/em> trademark, identifies the holders, or contains a statement that it has not been reviewed or endorsed by them. That is very likely an oversight.<\/p>\n

Over several years Professor Frank Bennett of Nagoya sought to secure assurance<\/a> that building a software module capable of taking citation elements held in a database and (as one of several options) producing citations consistent with Bluebook<\/em> style, identifying that style by the name with which we all know it, would not infringe. He was rebuffed. Patience exhausted, Bennett<\/a> has decided to call the output of his module<\/a> \u201cthe MLZ Bluebook Style\u201d and describe it as \u201can unauthorized implementation of \u2018The Bluebook: A Uniform System of Citation\u2019\u201d. Accurate. Unlikely to produce consumer confusion.<\/p>\n

\"nissan_altima\"<\/a><\/p>\n

A final point. Since the target of the federal trademark act is consumer confusion over the source of goods or services sold in commerce, those of us who write about citation norms and style guides need not place an \u201c\u00ae\u201d next to \u201cThe Bluebook<\/em>\u201d or otherwise acknowledge the book title\u2019s trademark status whenever we write about it and its contents, any more than an auto reviewer need do so when describing the 2014 Nissan Altima.<\/p>\n

2. What about copyright and The Bluebook<\/em>\u2019s contents?<\/h2>\n

Like prior editions The Bluebook<\/em>\u2019s nineteenth displays a copyright notice. It reads: \u201cCopyright \u00a9 2010 by the Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal.\u201d A review of U.S. Copyright Office records establishes that the book has been registered.<\/p>\n

Disturbed by the treatment of Frank Bennett (recounted above) Carl Malamud proceeded down a more confrontational path<\/a>. Last June he sent copies of a complete electronic replica of The Bluebook<\/em> to several legal academics, and placed a small portion online. In doing so, he asserted that since several U.S. courts require that all citations in briefs or memoranda conform to The Bluebook<\/em> its rules were (or ought to be) in the public domain. These actions drew a prompt response. A lawyer representing one of The Bluebook<\/em>\u2019s owners requested that Malamud cease distributing full copies of the guide and immediately take down the portions he had placed online, at the same time promising serious consideration of the access issues he raised. That process of “serious consideration” continues. In May Malamud received another letter<\/a>. It represented that the book\u2019s proprietors were \u201cevaluating potential arrangements that would expand the availability of The Bluebook<\/em> conventions, while at the same time, preserving the law reviews\u2019 copyright interests and decades-long investment in The Bluebook<\/em>.\u201d<\/p>\n

Note the distinction. Malamud\u2019s response<\/a> picked up on it at once. The citation conventions (or style or system) described in The Bluebook<\/em> are not protected by its copyright. The U.S. Copyright Act is explicit on this point:<\/p>\n

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.<\/p><\/blockquote>\n

17 U.S.C. \u00a7 102(b)<\/a>.<\/p>\n

On the other hand, although the phrase \u201cliterary work\u201d may not seem totally apposite The Bluebook<\/em> is surely an \u201coriginal work of authorship \u2026 fixed in [a] tangible medium of expression.\u201d So long as a competing work (the ALWD Guide to Legal Citation<\/em> or Introduction to Basic Legal Citation<\/em><\/a>, for that matter) avoids employing the specific means used by The Bluebook<\/em> to explain how to cite (e.g.<\/em>, its words, phrases, selected examples) that work can instruct readers on how to produce citations identical to those generated by careful use of The Bluebook<\/em>. The same holds for citation software or online data vendors. Both Lexis Advance and WestlawNext generate citations that are included with material copied from their collections. Users have a choice among several different formats. \u201cBluebook\u201d<\/em> style appears on neither list, the default format for both being labeled \u201cStandard\u201d. Yet for important categories of material the \u201cStandard\u201d format that both produce conforms to the conventions set out in The Bluebook<\/em>. Can these and other online data vendors deliver Bluebook<\/em> citations without the permission of the book\u2019s copyright holder? Surely, they can even though the reference book itself is covered by copyright and the distribution of verbatim copies is, for that reason, problematic.<\/p>\n

3. The terms and conditions of use agreed to by users of The Bluebook Online<\/em> and related aps<\/h2>\n

Those who click rather than page their way into the content of The Bluebook<\/em> at www.legalbluebook.com<\/a> are told that by doing so they agree not to display its trademarks without prior written approval or \u201ccreate derivative works from, distribute, perform, display, incorporate into another website, or in any other way exploit the information \u2026[it contains], in whole or in part.\u201d<\/a> Apparently, while those that run The Bluebook<\/em> enterprise take the IP rights represented by the circled \u201cC\u201d and circled \u201cR\u201d very seriously, they are not content to leave their proprietary claims to the contours of copyright and trademark law.<\/p>\n

4. And who holds these IP rights with the right to license their use or sue for infringement?<\/h2>\n

There is no Bluebook Inc. The Bluebook<\/em>‘s copyright notice and registration list four separate entities as owners: the Columbia Law Review Association, the Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. The same four appear on the trademark registration. Without knowing more about the agreements among these co-owners one can only speculate about how decisions might get made or, more likely, fail to get made.<\/p>\n

Who at each of the four was responsible for deciding what to do with Frank Bennett\u2019s email asking for assurance that his software wouldn\u2019t infringe? Did his question even get beyond one.\u00a0 Three of the journals are published by non-profit corporations.\u00a0 The fourth, The University of Pennsylvania Law Review<\/em>, is simply a university activity. Professor Bennett wrote one of the journals and heard back, ultimately, from one of its editors. Are such decisions really lodged in the hands of here-today, gone-tomorrow law students?<\/p>\n

One intriguing possibility is that the governing body for any one of the four journals could license The Bluebook,<\/em> that being the default rule with joint works of authorship<\/a>. Could a venture guided by so many lawyers and soon-to-be lawyers have left the matter in that posture? On the other hand, if the four must come to an agreement among themselves when confronted with a Bluebook<\/em> rights or licensing issue, the representation that \u201cThe law reviews are evaluating potential arrangements that would expand the availability of The Bluebook conventions ….\u201d seems unlikely to yield results anytime soon.<\/p>\n","protected":false},"excerpt":{"rendered":"

In a prior post I reported on the erasure of all prior differences between the citation style set forth in the ALWD Guide to Legal Citation\u00a0and that prescribed by the work entitled \u201cThe Bluebook: A Uniform System of Citation.\u201d Here my focus is on trademark and copyright issues that bear on the competition between these […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[31,8,32],"tags":[35,34,6],"class_list":["post-206","post","type-post","status-publish","format-standard","hentry","category-alwd","category-bluebook","category-copyright-2","tag-alwd","tag-bluebook","tag-copyright"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/206","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=206"}],"version-history":[{"count":11,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/206\/revisions"}],"predecessor-version":[{"id":245,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/206\/revisions\/245"}],"wp:attachment":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=206"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=206"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=206"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}