Posts In "Fair Use"

Fair Use

Federal Judge Declares Sherlock Holmes Characters in Public Domain. Sort of.

Federal Judge Declares Sherlock Holmes Characters in Public Domain.  Sort of.


Comedian Dmitri Martin has a great joke about the expression “sort of.”  Although normally a fairly meaningless expression, saying “sort of” after certain things suddenly becomes very important.  Such as after the phrase “I love you,” or “You’re going to live,” or “It’s a boy.”  I immediately thought of this joke after reading a recent order issued by a federal court in Illinois.  The order declared that Sherlock Holmes, Dr. Watson, 221B Baker Street, the evil Professor Moriarty, and other elements of Sir Arthur Conan Doyle’s beloved works have fallen into the public domain.


Sort of.

Continue reading the full story . . . »

Fair Use & Photography

Because I’m a lawyer, everyone in my family thinks I know everything about every esoteric law that has ever been written. As much as I wish I could recite the statute my Aunt Cookie swears she has heard of which would prohibit her neighbor’s cat from using her backyard as a litter box, I usually can’t help them without having to spend a Saturday doing some good ol’ legal research (for which I’d charge full rates, of course). So imagine my surprise when my brother started a new business and started coming to me with questions about “mainstream” legal issues with which I am actually familiar! He recently started a t-shirt company out of our parents’ garage (of course) and, while he has done a great job coming up with original t-shirt designs, every so often he consults me regarding “fair use,” and, specifically whether or to what extent an existing work of art can be transformed into something “new” on one of his t-shirts. Continue reading the full story . . . »

Q&A: What Copyright Rules Apply if I Record a Live Show for My Film?

Q: I’m a documentarian. If I were to record a live show as part of a documentary — audio and visual — am I free to use it even if there’s live music being played in the background?

A: Look, I’m no math magician, but one of the things I always liked about math is that it’s a world of definitive answers. In my simplistic view, the world to a mathematician is one big black and white cookie. It may be a complicated black and white cookie, but it’s black and white nonetheless.

I, for some reason, chose to be a lawyer. In the world of law, nothing is black and white. It’s all grey. And if we’ve learned anything from grey gooMay Grey, people who spell grey “gray,” and Grey’s Anatomy, it’s that grey sucks.

Unfortunately for us lawyers, most people assume that the law is black and white… that there are simple yes and no answers to legal questions. But there rarely are. Lawyers are paid big bucks to always find a counterpoint to every point raised by their opponent — and counterpoints usually exist. To make matters worse, sometimes legality and reality diverge. Even if you find yourself on the right side of one of those rare black and white legal situations, it may not matter unless you’re willing to pay a lawyer to enforce your rights, or defend you, in court. Proving you’re right, even when it’s painfully obvious that the law is on your side, can be an expensive endeavor, especially if the party on the other side has money and a bad attitude. Continue reading the full story . . . »

The Hangover 2 and the Tyson Tattoo: Lessons in Copyright, Contract, and Clearance

This month, the legal blogosphere has been all atwitter about aMissouri tattoo artist’s lawsuit against the studio behind The Hangover 2, and the artist’s attempt to stop not only the release of the film, but even block the studio’s ads and promotional materials. In case you aren’t up-to-date on your face art-related news (there’s just so much out there!), let’s catch you up: St. Louis tattoo artist S. Victor Whitmill has sued Warner Bros. claiming that a tattoo featured on the face of one of The Hangover’s main characters, Stu Price, played by Ed Helms, infringed Whitmill’s copyright in a very similar tattoo he placed on boxing-champ Mike Tyson’s face back in 2003. A cursory comparison of the two tattoos shows how strikingly similar they are, and when coupled with Whitmill’s allegations, perhaps how worried WB should be. (Hat tip to TMZ for the side-by-side comparison.)

Whitmill alleges that in 2003 he created “one of the most distinctive tattoos in the nation” — one that looks nothing like a facial version of the tramp stamp gracing the lower back of half of the current denizens of Hollywood nightclubs — by placing an original “tribal tattoo” (the registered name of the copyrighted work) on the upper left side of Tyson’s face. At the time he applied the tattoo, Whitmill apparently had Tyson sign a release (attached as an exhibit toWhitmill’s complaint). Although the release primarily contains typical tattoo/piercing CYA language (the signing client represents they’re over 18, not under the influence of drugs or alcohol, etc.) it also contains a provision stating “I understand that all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics” (Whitmill’s d/b/a, which pretty ingeniously linguistically science-ifies tattoo artistry).

While Whitmill’s release language seemingly purports to grant him ownership of any image of Tyson in which the tattoo is displayed (the actual photographers might have something to say about that, I think), Whitmill kept silent as Tyson and his tattoo made their big cameo in 2009’s summer juggernaut, The Hangover. It wasn’t until a look-a-like tattoo appeared on Ed Helms’ (extremely pained-looking) face in ads for The Hangover 2 that Whitmill decided to bring an infringement claim. And already, bemused legal eagles are wondering if it’s “the best copyright complaint ever.” Continue reading the full story . . . »

Six Degrees of Sun Tzu: Fair Use and the Art of War

Let’s play a bizarre twist on a familiar trivia game I like to call “Six Degrees of Sun Tzu.” If I challenged you to connect the author of Art of War (a 2,500 year old Chinese treatise on military strategy) to the author of a listserv posting (the distinctly 21st century phenomenon of social media), how many degrees do you think it would take you to do it? Here’s betting you won’t beat Judge Dolly M. Gee of the United States District Court for the Central District of California, who accomplished the feat in just one move.

Judge Gee recently (and hilariously) smacked attorney Kenneth Stern upside the head for filing a lawsuit claiming that the forwarding of a single, 23-word sentence he had posted to a listserv email list constituted copyright infringement. The Court’s legal analysis opens by quoting a phrase — in Chinese characters — from Sun Tzu’s Art of War(the Court translates it in a footnote): “He will win who knows when to fight and when not to fight.” What, you ask, could possibly prompt the Court to cite with approval the theories of an ancient Chinese military general in a copyright infringement case? Here are the facts:

Worried that a forensic accounting firm he had retained was overcharging his client, Stern posted a question to the Consumer Attorneys Association of Los Angeles listserv, asking if anyone else had experienced overbilling problems with the CPAs. Another listserv member emailed the posting to his sister (a non-member), who was a client of the accounting firm. She, in turn, forwarded it to the CPAs. Then it got interesting. Continue reading the full story . . . »

Q&A: I Want to Make a Film, Mixing a Commercial Video Game Character With My Own Ideas. Do I Need Permission?

Q: I want to make an independent film about a video game character by mixing the original storyline and characters with my own ideas. I didn’t know if I needed to obtain permission or rights to make it even though its going to be non-profit. I just want to be able to put it on YouTube and stuff. Thanks!

A: Your gracious author is wondering if you somehow stumbled upon his Xbox Live Gamertag and discovered that when he’s not faithfully answering legal questions or playing the role of human punching bag for his two young children, he’s sneaking off to his man hovel (i.e., his living room after everyone’s gone to bed) to play Halo 3 online with his similarly maturity-stunted friends. This mild addiction to a videogame has lead to an introduction to the world of guerilla videogame cinema known as “Machinima.” Continue reading the full story . . . »