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.
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.)
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?
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 Fair Use & Photography
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 goo, May 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 Q&A: What Copyright Rules Apply if I Record a Live Show for My Film?
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 Hangover 2 and the Tyson Tattoo: Lessons in Copyright, Contract, and Clearance
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 Six Degrees of Sun Tzu: Fair Use and the Art of War