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.
Last month, I wrote about some notable examples of film and television producers being sued or threatened for using other peoples’ creations without permission. Examples included Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Companythreatening legal action against an Italian film distributor over a film in which
Have you ever noticed how people rarely sing “Happy Birthday to You” in movies and television? Instead, people usually sing “For He’s a Jolly Good Fellow,” even though no one actually sings that song in real life. Nevertheless, this falsification of reality happens all the time. My favorite example was when the crew of the Enterprise
[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.
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…
Continue Reading “Where Are They Now”: Law Law Land Edition
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 adifferent quirk of copyright law — the proliferation of blanket “public performance” licenses managed by performing rights organizations ASCAP and BMI — to blame for those abominations.)
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’sRequiem 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.”)
Q: For some 10 years now, I’ve been trying to penetrate the 10 foot thick wall called “unsolicited.” How do I get through it? I have no agent.
A: We can answer your question, but frankly, you may not like what we’re going to say. Unfortunately, that 10 foot thick wall is probably as old as the Great Wall of China and is equally as impenetrable. For those of you who haven’t had the pleasure of submitting a script to an individual, production company, studio or, god forbid, law firm only to have it returned to you with a letter classifying it as an “unsolicited submission,” we can give you a little background.
Picture a sexy young bride, reclining sensuously on the nuptial bed. Smiling seductively, she lifts her wedding dress — a stretch white mini — to give her new husband a glimpse of the lingerie covering her private parts.
Come to think of it, you don’t have to imagine this scenario. You can see the photograph of pop artist/bride Noelia Monge and her manager/husband Jorge Reynoso in Issue 633 of TVNotas magazine. (A decidedly less scandalous photo of the happy couple is here on the right. Sorry, folks, this is a family-friendly blog.)
Didn’t know they were married, did you? Neither did anyone else — until their hitherto personal wedding photos appeared in the aforementioned gossip magazine, unbeknownst to the couple.
In a case that even federal judges had to admitread like a telenovela, Monge and Reynoso sued publisher Maya Magazines in Los Angeles federal court, alleging copyright infringement and misappropriation of likeness. The trial court dismissed the claims and held that the publisher had the right to publish the photographs under the fair use doctrine, which provides refuge from infringement claims when the use of copyrighted material is for purposes such as news reporting.
But last month, the Ninth Circuit reversed, holding that TVNotas’ publication of the happy couple’s extra-happy-looking photos was not protected by the fair use doctrine, setting up Monge and Reynoso to claim some damages. But in a world where celebrities are constantly battling to limit their exposure in the tabloid press, how did Monge and Reynoso win this fight? And what does it mean for the constant struggle between celebrities and publishers?
Q: I was wondering if you could help me with a problem I am having with the rights to a short story. I have been in touch with the relevant owners of the copyright and they have been told by the author’s estate they are not allowed to do anything with the rights to the story. However, what I am wanting to do with the story is not a direct adaptation — but more of an “inspired by.” What I am wanting to do is a 60 minute TV one off. The only thing I am desperate to hang on to is the short story’s “twist” and elements of the central dilemma. Where would I stand with moving ahead with different character names, different structure, but retaining the twist and profession of the central character from the short only – crediting only “inspired by”?
A: Copyright law doesn’t protect ideas – it protects the expression of ideas. This is a simple concept in theory, but applying it to a particular situation could be challenging. For several excellent, definitive, and thought provoking discussions of this topic, please see our blog.