AK47 Comes Back Swinging

AutoAdmit pseudonymous defendant “AK47″ has made a few errors in judgment. First his statements on the AutoAdmit board. Bad judgment? Yes. Legally actionable? Probably not. But, that didn’t stop anyone from including him as a defendant.

Next error in judgment - this pro se motion to quash.

Back on February 28, I wrote:

My prediction — had Mr. AK47 written his motion a little more skillfully, he might have had a great chance. Unfortunately for him, the motion is so poorly drafted that it will take some charity on the Court’s part for it to fly. I hope that for the First Amendment’s sake, the judge is feeling the love.

It appears that my prayers were answered by the First Amendment gods, because Judge Droney took the very unusual measure of appointing pro bono counsel for AK47 - John R. Williams (who seems to be pretty bad ass).

Williams argued the Motion to Quash on May 5. As a result of Williams’ work at that hearing, Judge Droney ordered Plaintiffs counsel to brief him on whether the court has subject matter jurisdiction. As discussed here, the entire case could potentially unravel, depending on how the judge rules on the subject matter jurisdiction question.

Plaintiffs counsel responded with this memorandum. I am not very impressed. I’d have given it a D plus if it were submitted in one of my classes.

Today, AK47’s attorney really opened up a box of PWNAGE. If Mr. Williams is correct, then the plaintiffs made a pretty bad tactical blunder (as if filing this frivolous case wasn’t enough of a blunder).

First off, it seems that Mr. Williams found the same ironic quote authored by the Plaintiff’s counsel:

The plaintiffs’ lead attorney in this case has appropriately written that “[b]y mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable.” Lemle, “Rationalizing Internet Safe Harbors,” Stanford Public Law Working Paper No. 979836 (April 10, 2007), http://ssm.com/abstract=9798736. That, of course, is exactly what the plaintiffs have done here. The only basis for federal jurisdiction of this action is the plaintiffs’ claim that one of them, Doe I, “owns valid copyrights in her photographs and has registered these copyrights with the United States Copyright Office.” The plaintiffs now admit that Doe I has no such copyright at all. They argue, somewhat disingenuously, that this inaccurate claim was a mere “typographical error” and that another plaintiff in fact owns and has registered a copyright.

D’oh!

The Lemley-PWN aside, is Attorney Williams making too much hay out of a mere “typographical error?” Normally, I would say so. However, upon closer inspection of the argument, he seems to have a point. It seems that the plaintiffs have had multiple chances to fix the “error,” and only now raise it as a “typo.” Further inspection of the pleadings leads to the suggestion that perhaps it was not a typo at all.

Then comes the jurisdictional whup-ass.

The federal jurisdictional “hook” upon which the plaintiffs rely is gossamer thin in any event, as demonstrated by the fact that in their briefs opposing the motion to quash they do not even attempt to argue that they can win their copyright action. That it was manufactured specifically to allow the plaintiffs to get into federal court with their state law case can hardly be doubted, since the alleged copyright was not registered until a mere two days before this suit was filed, and it was registered by the plaintiffs’ attorney in this action. (source)

I don’t know if Judge Droney will simply toss this action - but he certainly seems to have adequate grounds to do so.

Read Williams’ memo here.

Legal Satyricon in the News

A few weeks ago, I wrote about the Rauschenberg fracas in Dumpster Diving Leads to VARA Suit. The Fort Myers News-Press just did an article about the story. See Lawyers, artists the world over are captivated by case

Dumpster Diving Leads to VARA Suit

Art dealer or
VARA Scofflaw?

Here’s an interesting one, found at On Point News.

It isn’t very often that you see a VARA suit, but we have one going on in the Middle District of Florida. Artist Robert Rauschenberg is suing artist Robert Fontaine for selling works of art that bear certificates of authenticity attesting to the fact that Rauschenberg created them. Complaint.

But Fontaine’s attorney claims he found the proof sheets in a pile of junk outside Rauschenberg’s home on Captiva Island, Fla. “It appears Rauschenberg threw this stuff away,” Yale T. Freeman told USA Today.

Note the strange fact pattern here: Fontaine did not take Rauschenberg’s stuff from the trash and put his own name on it. Fontaine took Rauschenberg’s trash and then sold it as “a genuine Rauschenberg work.”

We don’t see many VARA suits because the Act is, for the most part, useless. VARA stands for “Visual Artists Rights Act,” and the act is codified at 17 U.S.C. § 106A. It only applies to paintings, drawings, prints, sculptures, and photos that are produced for exhibition, and even then, only if they are produced as a single work, or in limited runs of 200 or fewer copies — and those copies must be signed by the artist.

The statute affords the following rights to this very limited universe of works:

(a)Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

(1) shall have the right—

(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113 (d), shall have the right—

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

It sounds like Mr. Rauschenberg is seeking to enforce his rights under subsection (a)(1)(B). The question comes down to did he create the visual work that Mr. Fontaine sold?

Maybe… first the court will need to determine whether Rauschenberg actually created the proof sheets that Fontaine allegedly picked from his trash. That should be relatively simple. If they are forged or were drawn by someone else, Rauschenberg probably wins.

Don’t take art
from it either

However, I don’t think that the case is that simple. The court should then decide whether these proof sheets are “works” that Fontaine can truthfully attribute to Rauschenberg. Is a discarded “proof sheet” a “work of visual art?” I would imagine that if the Court reads the statute in an unsophisticated and mechanical way, Rauschenberg will lose (provided that Fontaine can prove that Rauschenberg created the proofs).

On the other hand, Rauschenberg’s could raise the claim that the proof sheets are not “works,” but merely byproducts of the creative process, thus Fontaine’s claim that these “works” are “genuine Rauschenbergs” would be false. Additionally, VARA allows the artist to prevent the use of his name on works created by others, including distorted versions of the author’s original work. See Phillips v. Pembroke Real Estate, 459 F.3d 128 (1st Cir. 2006). Therefore, even if these are “genuine,” they are likely “distorted versions,” since Rauschenberg certainly did not intend for them to be displayed the way that Fontaine displayed them.

If the court applies VARA properly, it will find that (at least for VARA purposes) a “work” is not a “work” until the creating artist says it is a “work.” Thus, you can not take something that an artist created during the creative process, and then discarded, and say it is an authentic work of that artist. Even then, if an artist discards a copy of a work that he finds to be dissatisfying, he has a negative right of attribution that the Court should recognize and support.

Given the complete dearth of cases interpreting VARA, I hope that this doesn’t get settled out of court.

Old is New … Satire v. Parody

I’ve always been a bit uncomfortable with how the 9th Circuit dealt with the Cat in the Hat case. Dr. Seuss Enters., L.P., v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).

I just came across a 1998 article by Santa Clara intellectual property professor, Tyler Ochoa. Ochoa criticizes the 9th’s decision in DR. SEUSS, THE JUICE AND FAIR USE: HOW THE GRINCH SILENCED A PARODY, 45 J. Copyright Soc’y USA 546 (1998)

[The book] it was a satirical account of the O.J. Simpson trial written in the style of Dr. Seuss. Entitled The Cat NOT in the Hat! and labeled “A Parody By Dr. Juice,” the book recounted the events of the trial in simple and repetitive rhyming phrases like those used in The Cat in the Hat and 46 other children’s books written by Theodor S. Geisel under the pseudonym Dr. Seuss. The Cat NOT in the Hat! was illustrated with thirteen depictions of a cartoon caricature of O.J. Simpson, also in the style of Dr. Seuss, wearing the Cat’s distinctive red-and-white stovepipe hat.

Based on a pre-publication advertisement, Dr. Seuss Enterprises filed suit against the authors and publishers of the parody, claiming that it violated the Copyright Act, the Lanham Act, the Federal Trademark Dilution Act, and California Unfair Competition law by using copyrighted expression and registered and unregistered trademarks belonging to the plaintiff. The District Court entered a preliminary injunction against the defendants, holding that the plaintiff had demonstrated a likelihood of success on the merits of its copyright claim, and that the trademark claim presented serious questions for review and the balance of hardships favored the plaintiff. On an interlocutory appeal, the District Court’s rulings were affirmed by the Ninth Circuit in a published opinion.

In this article, I will demonstrate that the Ninth Circuit’s opinion was incorrect, both as a matter of law and as a matter of public policy. In its opinion, the Ninth Circuit misapplied controlling U.S. Supreme Court precedent in holding that The Cat NOT in the Hat! was not a parody and was not a transformative use; in holding that the defendants were limited to that copying necessary to “conjure up” the original; and in presuming that the defendant’s commercial parody would cause harm to the potential market for the original and licensed derivatives.

Part II of this article will discuss the social importance of parody and the related forms of burlesque and satire. Part III will briefly review the development of the parody defense to copyright infringement, with particular attention to the U.S. Supreme Court’s 1994 opinion in Campbell v. Acuff-Rose Music, Inc. [FN5] Part IV will summarize the Ninth Circuit’s opinion in the Dr. Seuss case, while Part V will offer an alternative analysis explaining how the Ninth Circuit erred in enjoining publication of The Cat NOT in the Hat!

I definitely place Ochoa at the top of the hill when it comes to IP professors that have earned and maintained my respect. (He could a bit of tutoring in 1980s pop culture, but that is a private joke). I really wish that I had read this article a long time ago.

Fox News Porn - Fair Use Orgy!

This is going to be a fun election for intellectual property wonks. We’ve already seen the Clash of the Anti-Hillaristas!

Now, Fox News finds itself in a fair use maelstrom.

In an effort to criticize the network that brought us eight years of darkness, an anonymous webmaster has created the Fox News Porn website. Apparently the webmaster has detected higher than normal levels of T&A on Fox News.

One of the links brings you to Fox Attacks, a blog that seems to be devoted to tearing down the Fox Network.

Disclaimer, I do occasional legal commentary on Fox. Nevertheless, I don’t allow that to bias my opinion of the network. I do think that Fox is open to plenty of honest criticism, but I find this kind of attack to be more than a little dishonest. Every network dishes up the skin. If these people have a beef with Fox’s content and political leanings, so be it. That is the arena in which they should take on Fox - not some faux morality crusade.

This kind of shrieking is far too reminiscent of the McCarthy-like tactics employed by the religious right.

Lets sit on the sidelines and see if Mr. Murdoch takes the criticism, or if this winds up being a really interesting intellectual property case. The site clearly uses the Fox News logo (trademark infringement) and clearly uses Fox’s copyrighted materials. However, I’m certain that if Fox attempted to bring a claim for either one, the fair use defense would obliterate the claims.

Clean Flix Owner Gets Dirty — With Children

How many of these holier-than-thou types have to wind up with their hands down kids’ pants before people realize that they who protest too much probably have a little something to hide?

Daniel D. Thompson ran an Orem, Utah business that edited feature films to remove naughty content. The store shut down after threats from the movie studios in light of Clean Flicks of Colorado, LLC vs. Soderbergh, No. 02-CV-01662-RPM (D. Colo., July 6, 2006). (This Utah Clean Flix does not appear to be related to any entities involved in that litigation).

Mild-mannered moralist censor by day, child molester by night!

Thompson and his buddy Isaac R. Lifferth were arrested for having sex with 14 year old girls (for the sum of $20 per trick).

The booking documents state Thompson told the 14-year-olds that his film sanitizing business was a cover for a pornography studio. He asked the girls if they would participate in making a porn movie, but they refused, the documents state.

Police found a “large quantity” of pornographic movies inside the business, along with a keg of beer, painkillers and two cameras hooked up to a television. Thompson told police he didn’t know the teenagers were under 18 or that they were paid for sex. He said pornography found at the business was for “personal use,” according to the documents. (source)

All I can say is, “it figures.”

Vermont Family Court and Blogger Rights

Family law scares me. Too much hate and negativity for my sensitive soul. However, it seems that if you turn over enough stones in any area of law, you’ll find an interesting First Amendment and/or intellectual property issue.

In Garrido v. Krasnansky, the husband, William Krasnansky let off some steam by writing a semi-fictional blog about his marriage and his divorce. He supplements it with passages from his ex-wife’s private diary.

The judge initially “ordered Mr. Krasnansky to take down “any and all Internet postings” about his wife and their marriage pending a hearing next month. (source)“

That was clearly an unlawful prior restraint.

The judge, in a commendable act of humility, reversed himself in part. See Order. In his order, the judge notes that Krasnansky’s blog was certainly mean-spirited. But, he notes (as I wish most judges would):

The fact that speech is offensive, profane, irritating or even vexatious does not remove it from First Amendment protection. State v. Allcock, 177 Vt. 467, 469 (2004). (source)

Accordingly, he lifted the portion of his prior order that enjoined Mr. Krasnansky from writing about his ex wife.

However, he recognized the wife’s property interest in the diary’s contents. The judge interestingly notes that copyright law is beyond his jurisdiction, since this is a family court and not a federal court. Nevertheless, he asserts jurisdiction over the diary as a piece of marital property and allows his injunction to stand with respect to reproduction of this piece of property.

In Copyright Flap, Dozier Digs Deeper

I was a little flabbergasted by how the law firm that claimed that copyright law prohibits the republication of a cease and desist letter. That issue discussed here: Copyright vs. Free Speech in Cease and Desist Letters.

Watching the firm keep on digging is starting to feel like watching a train wreck.

One commenter said:

Dozier, the more you post the more paranoid you appear… [i]n the end, you’ll make a fool out of yourself and your law firm. (source)

Agreed. But lets unpack the arguments:

In criticizing “liberal ‘free speech’ types” (his words) who believe in fair use, John Dozier gives us this mind boggling twist:

Volokh on the Dozier Copyright Issue

I’ve posted twice about this:

Copyright vs. Free Speech in Cease and Desist Letters

In Copyright Flap, Dozier Digs Deeper

Volokh has chimed in here: Who am I to argue with Eugene Volokh?

Copyright and Fair Use in Demand Letters

Earlier Post is updated with links to other sources on the subject and additional analysis.