The Beatles crossing Abbey Road.  A nurse and sailor kissing in Times Square as the end of World War II is announced.  An African vulture patiently waiting for a starving toddler to die.  The 1968 Olympics Black Power salute.  Jack Ruby shooting Lee Oswald.  Rose and Jack on the bow of the Titanic (or, for movie fans of a different era, maybe Marilyn Monroe’s white dress billowing as she stands over a subway grate).

Iconic photographs capture an image and immortalize it.  Once seen, forever remembered.  Pictures worth a thousand words.  Other poignant clichés.  The point is, a photograph can take everything a historical moment symbolizes and preserve it for eternity — or at least until you accidentally throw out the pictures while moving, or maybe leave them unattended in your storage locker until you die.  (And if you haven’t seen the above photographs — other than the storage locker ones — stop reading this blog and look at them now or risk forever being a cultural ignoramus.)

Now think of a photograph of a little girl wearing a pink coat sitting on her father’s shoulders outside a church clutching a palm leaf.  Unless you spend a lot of time studying FBI manhunt posters, this photograph does not immediately spring to mind.  But it has one trait that the above photographs do not:  it was the subject of a recent lawsuit by its photographer against Sony Pictures, which used a photograph featuring a little girl wearing a pink coat sitting atop Eric McCormack’s shoulders in a television movie.  So, are these two photos “substantially similar,” such that the image on the right infringes the copyright in the image on the left?

According to Sony Pictures — and, now, the Boston-based federal Court of Appeals for the First Circuit — the answer is no. Continue reading the full story . . . »

Ken Basin

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[In honor of Super Bowl XLVII — because everyone knows that Roman numerals make everything very distinguished and significant — we're bringing back one of our most-read, and most personally-favored posts.  Enjoy your SUPER BOWL PARTY, everyone.]

Unless you live here, I’m assuming you’re aware of a little football game taking place this weekend between the San Francisco 49ers and the Baltimore Ravens.  (And maybe, just maybe, you might have heard something — but probably nothing original — about that whole Harbowl storyline.  Well here’s a little-known wrinkle about it.)

I’m as excited as anyone for the game, which is why, this Sunday, I might try to find a local bar hosting a Super Bowl party. But I’ll probably be out of luck, unless I’m willing to go to a “Big Game” party instead. And if I’m feeling spendthrift — the always-confusing word that sounds like “thrifty” but actually means “profligate” — I might try to pick up a new flat-screen TV at a Super Bowl sale. But unless I’m willing to settle for one of those ubiquitous “Big Game” sales, I’ll probably be forced to stick with what I’ve got.

Every year, while every sports yak in America is obsessing over Super Bowl scouting reports, every business in America is trying to capitalize on the game. But most of them aren’t using the words “Super Bowl” to do so, and the reason is fairly obvious: the phrase “Super Bowl” is trademarked by the NFL, which is famously protective of its intellectual property. Moreover, the privilege of using the phrase “Super Bowl” in advertising is one of the valuable rights bestowed by the NFL upon its advertisers and promotional partners — which gives the NFL extra incentive to keep freeloaders from poaching the phrase (thereby diminishing its value to potential paying promotional partners).

But what if the NFL is wrong? What if I really could check out the Super Bowl party at my favorite watering hole without them being subjected to the threat of legal doom?

Guess what, folks: I can. Continue reading the full story . . . »

Aaron Moss

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[Ed. Note:  In honor of Martin Luther King, Jr. Day, we'd like to re-run one of our favorite seasonal blog posts, thereby honoring Dr. King's legacy not only as a visionary and civil rights leader, but also as a copyright litigant.  Don't judge us; we're lawyers, we can't help ourselves.]

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

These words will be heard many times this week as we celebrate the birthday of Rev. Dr. Martin Luther King, Jr. They are, of course, from King’s famous 1963 “I Have a Dream” speech. But as you celebrate his life and listen to his words, ask yourself this question: have you ever heard the whole speech? Not just the key excerpts that will be repeatedly broadcast on the news, but the entire, seventeen-minute address as it was given to a crowd of 200,000 in front of the Lincoln Memorial?

Ever wonder why it’s not shown on TV more often?

The answer, my friends, is copyright. Because while Dr. King may have dreamed of a world without racism, even he wouldn’t dare to dream of a world without lawsuits.

Yes, in addition to being a noted clergyman and civil rights leader, Dr. King was a copyright litigant. Continue reading the full story . . . »

Ken Basin

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This time last year, Law Law Land joined the hackneyed proud tradition of legal blogs offering year-end lists of cases to watch in the coming year (though in our defense, we did try to mix it up by reviewing totally absurd cases as well as totally important cases).  But “year in review” and “year to come” are cultural clichés that never held much appeal to me.  “Where are they now?” on the other hand?  That’s more my speed.  (Maybe that’s why I always adored the last five minutes of every episode of VH1’s Behind the Music, where the program would show the artist in their current, everyday life and tease the inevitable “impending comeback.”)  So what has become of those five big cases we told you to watch this year?  And did we pick good ones or not?  (Preview:  Yes, we did.  Oh shush, I don’t care if we’re biased.) Continue reading the full story . . . »

Ken Basin

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What do Avril Lavigne cover songs, Dish Network’s AutoHop feature, celebrity sex tapes, apartment hunting websites, and ad-serving browser skinning programs have in common?

Each of them is a window into how copyright, an 18th century concept, drafted into a 20th century law, impacts the products we use and the way we experience life in a 21st century world.

The Simplest, Most Complicated Law You Know

Non-lawyers usually think of copyright as a pretty simple and intuitive area of the law, and in many ways, it’s one of the easiest areas to break down into easy, digestible (if somewhat oversimplified) terms.  What’s a copyright?  The exclusive right to control and exploit creative works.  How do you infringe a copyright?  Copy or perform a work without permission/payment, or steal it to create your own new, too-similar work.  Putting aside people’s chronic tendency to confuse copyrights and trademarks — helpful hint:  copyrights are for creative works, trademarks are for brand name, logos, and slogans — copyright is an area of law that, at least initially, the general public can intuitively “get.”

Of course, when the breakneck speed of technological development meets the languorous pace of national lawmaking, things can get a bit more complicated. For example, when the copyright infringement case against file-sharing service Grokster finally came before the Supreme Court in 2005, the Court’s nine justices required three separate opinions and the invention of an entire new theory of copyright liability to explain why Grokster was illegal, but other, less offensive services might not be illegal.  (Headline:  “Supreme Court Rules ‘Unanimously’ Against Grokster 3-3-3.”)

To be fair, though, things started getting wacky long before the Internet was invented.  For instance, most people know that any musician can cover any other musician’s song, without permission (for a small, statutorily-defined fee).  Why?  Because in 1909, Congress created a special “compulsory license” scheme to allow player piano roll makers to sell song rolls without having to separately seek permission from the original songwriters.  Somewhere along the way, some clever lawyer figured out the law was drafted broadly enough to allow for unauthorized cover songs, and now we all have to deal with Avril Lavigne defiling John Lennon’s “Imagine” in the name of Darfur relief.  (Miley Cyrus’s evisceration of Nirvana’s “Smells Like Teen Spirit” and Celine Dion’s desecration of AC/DC’s “You Shook Me All Night Long” were, to my knowledge, only ever performed live, and so we have a different quirk of copyright law — the proliferation of blanket “public performance” licenses  managed by performing rights organizations ASCAP and BMI — to blame for those abominations.) Continue reading the full story . . . »

We here at Law Law Land are big fans of Halloween, the drunkest, sluttiest, most creative and fun-loving holiday of the year.  Law Law Land HQ itself is awash in cat ears and warlock coats today, and your editor is looking forward to a heaven-vs.-hell, angel-vs.-devil ping pong grudge match of epic proportions tonight.  But if you’re looking for a real fright on Halloween night, just consider some of the following truly scary cases and claims.

If the Past Is Never Dead, Does That Mean the Past Is Undead?

William Faulkner famously wrote, “The past is never dead.  It’s not even past.”  Woody Allen-mouthpiece Owen Wilson less-famously said, in 2011’s Midnight in Paris, “The past is not dead!  Actually, it’s not even past.  You know who said that?  Faulkner.  And he was right.  And I met him, too.  I ran into him at a dinner party.”  And Faulkner’s estate is now infamously saying that, if you use Faulkner’s line (ish) in a movie, with attribution, you have broken the law.

Faulkner’s estate is suing Sony Pictures Classics for copyright infringement and trademark infringement, claiming that Midnight in Paris’s misquote of Faulkner’s famous aphorism from 1950’s Requiem for a Nun not only infringes their copyright, but also violates the federal trademark statute by deceiving viewers into believing that the movie was affiliated, endorsed, or authorized by the Faulkner estate.  So are Sony’s lawyers running scared into the night?  Not likely.  But the distant howls you might be hearing are actually the pained wails of frustrated intellectual property law professors everywhere.

(Special kudos to the usually-dry-as-a-skeleton Courthouse News Service for observing, “at risk of offending the shade, or estate, of Charles Dickens:  This is a far, far weirder thing than Sony has ever done.”) Continue reading the full story . . . »