A crossword, as a piece of work, is definitely copyrightable, but there are a number of differences with regular written work which make copyright a bit of a grey area. A few weeks ago I told you how the Australian government compensates authors for copies made by institutions and businesses – this week I’m going to briefly look at the legal aspects of copyright. First, there’s the grid. Concensus has it that the grid itself isn’t subject to copyright as there are 100s of potential black square/white square combinations in just a standard 15 by 15 grid. It makes sense that no-one “owns” particular patterns that can be easily generated by any crossword program or just drawn with a ruler and a pencil. An issue could arise if the grid formed a picture, constituting a work of art, however a setter could just change the mix of answer slots inside the outline to form a completely different-looking grid. So, grids, generally, are open slater. What about individual clues? Obviously, if we are talking about non-cryptic clues, then there are no restrictions as the clues are generally just based on synonyms. I genuinely believe crossword writers of all types of crosswords have styles, but this only manifests itself in the context of the entire crossword – more on this later. With cryptic clues, the waters get a little murky. It’s very possible for two setters to come up with identical or near-identical clues for the same word simply because there are limited ways to clue words, and sometimes there are obvious ways to break down words that could lead to very similar clues. Some words have anagram combinations that stand out, so these may be used at the heart of the wordplay and would appear to be slight modifications of the same idea. Not being an exact science means it’s also not possible to copyright individual clues, making it hard to claim that someone else pinched a clue from another setter. Sometimes it’s clear a clue is based on another, but the setter has added his/her own twist – is this plagiarism or enhancement?
Where I think it’s more clear (but not totally clear) about copyright breach is when whole crosswords have been reproduced with a few modifications to either the answer words in the grid and/or the clues. I saw this in an Australian newspaper where the setter had taken a previously-published crossword (that they wrote) and changed a few clues and words to give it a token Australian theme – not strictly a copyright breach, but perhaps not totally ethical either. How much of a crossword has to change for it be to considered different or a new crossword? This is where style comes in – a plagiarist might be able to tinker with a crossword’s contents, but they can’t disguise the setter’s style or reproduce it when trying to modify clues.
Here is an article that originally appeared on the Crossword Centre and was reproduced in Crozworld in 2006 about crosswords and copyright:
COPYRIGHT AND CROSSWORD COMPILERS:
Prolific Compiler Roger Squires (Rufus) talks about copyright: “Early in 2005, quite by chance, I discovered crosswords of mine that were compiled between 1968 and 1995 being repeated in a Sussex newspaper without my knowledge or permission. I found out it was being supplied by a locally based Syndicate. Subsequently I discovered that the firm were sending the puzzles to Australia, Canada, India and New Zealand as well as other UK outlets. When I contacted the Syndicate it denied the fact, saying that the puzzles were “newly compiled”. Eventually, having checked the Copyright Law on the Internet and with the legal departments of The Times, Guardian, FT and Daily Telegraph I took the Syndicate to The Small Claims court. Copyright Law states that the “author” of a crossword retains copyright after publication unless there is a contract specifically requesting copyright. The Times legal people admit that their crossword becomes the copyright of the setter after publication – but made no comment on their repeating the puzzles in their crossword books. The Guardian retain copyright for a year for syndication. The Telegraph agree with the Copyright Law but had some idea that they might be able to copyright the grid and clues. Legal opinion is vague about this, but from previous investigations I have always understood that, as grids are normally symmetrical, setters are likely to be able to make up their own grids quite by chance that are the same as used by some newspapers and this meant no-one could copyright a specific grid. The same for individual clues – often compilers see a similar clue to one they have used appearing elsewhere because there are only so many ways of clueing some words. Again, the basic understanding is that you cannot copyright clues or grids. However, if a crossword has so many identical clues in the same grid then it would be reasonable to agree that it had been plagiarised. Armed with my original crosswords and examples being sold by this Syndicate, I claimed copyright and compensation in the Small Claims Court in September 2005. The firm did not reply to the Court and I was given judgment by default, being given the maximum amount possible in this court of £5,000 + expenses. The Defendant then decided to file a defence and a hearing took place in November 2005. The defendant did not attend and the judge struck out his defence after being shown that both sets of puzzles were identical. Payment was made in December. Unfortunately he is still disseminating my crosswords without payment and I am faced with possible court action again.The Small Claims Court is unable to make injunctions for people to stop any activity. However, I thought it might be of interest to setters that, unless any commission for puzzles includes a direct statement that copyright is required, the copyright of the crosswords reverts to the compiler after first publication.” [Article courtesy of Derek Harrison, firstname.lastname@example.org]
This all takes place in the UK (although the Syndicate sold Roger’s crosswords overseas) and therefore all references to copyright law and the process Roger took are related to how it is in the UK. It’s likely to be very similar here in Australia as many of our laws in this area are based on UK law, however, the process to get compensation through the courts system seems to be quite different. Courts in Australia handle copyright breaches at a higher level, which probably means the costs of defending copyright would be prohibitive for most setters who are sole traders. In Roger’s example, the offenders didn’t bother to appear at either the original case or the appeal, demonstrating, perhaps, that they were quite happy to cop the punishment. More, the fact that the Syndicate continued to illegally reproduce Roger’s work after being found guilty of a breach demonstrates their clear contempt for the process and their understanding that the court didn’t have the power to actually stop them.
You might remember the story of Timothy Parker who was caught out in 2016. As I was writing this piece I wondered if there were any legal repercussions of his actions (after all it happened in the land where taking people to court is commonplace). I found this:
From this article it appears Mr Parker was sanctioned, his reputation tarnished, but he wasn’t subjected to any legal action. The area seems to be grey/gray all over the world…