Apparently Shepard Fairey lied to his lawyers about which photo of Barack Obama formed the basis for his iconic HOPE poster. (source) The sad thing is, it shouldn’t matter. The poster
is clearly seems like fair use.
Apparently Shepard Fairey lied to his lawyers about which photo of Barack Obama formed the basis for his iconic HOPE poster. (source) The sad thing is, it shouldn’t matter. The poster
Clothing producer, The North Face (TNF), recently got a lesson in how bad trademark enforcement decisions can make a company look silly. It seems a St. Louis teen thought that it would be amusing to create a clothing line parody, calling it “The South Butt,” — south being the logical opposite of north and butt being… well… you get the idea. TNF was not amused, however, and they set their attorneys to attack mode, sending a cease and desist letter to the college freshman (source).
TNF’s letter asserted that use of the “South Butt” logo (pictured below) constitutes an infringement of their own federally registered trademark (pictured above). On its face, TNF’s claim is not so unreasonable. As any trademark owner (who has a decent attorney) can tell you, trademark rights can be lost if you don’t enforce them. TNF must, in order to maintain its ability to sue legitimate infringers, actively look for unauthorized uses of its logo. However, owning federal trademark rights does not mean you can stop every use of your mark that you don’t like. Federal trademark law was created to prevent consumers from becoming confused about the source of goods, not give complete exclusionary rights in logos, words, and phrases. It certainly wasn’t meant to give companies the power to stifle criticism — a point that corporate attorneys seem to frequently fail to explain to their clients.
In order to be actionable as an infringement, the South Butt logo must be likely to cause confusion in the minds of the consuming public. In other words, if “an idiot in a hurry” would not be able to tell the difference between these two logos, then TNF could conceivably stop South Butt from using their logo. I think South Butt’s attorney states the issue with TNF’s claim pretty well:
I did try to explain with a great deal of candor to counsel for the North Face that the general public is aware of the difference between a face and a butt. (source)
The irony is that, as many other companies have learned in the past, over enforcing your trademark rights can have the exact opposite effect from the one that you intended. In this case, only a few people were even aware of the “South Butt” brand before TNF took any action. Presumably, TNF wanted to suppress this innocent gibe at their popular brand, but instead, they only managed to boost web traffic at shop.thesouthbutt.com.
This story has also been published on The Tactical IP Blog.
I have refrained from writing about this issue, since I am representing NORML in connection with this matter. However, Sam Bayard over at the Citizen Media Law Project Blog has done a great job of it. See Yes We Cannabis: Another Obama Photo Sparks Fair Use Controversy.
J.D. Salinger wrote one of the most influential novels in modern history. If you don’t know which book that is, then you’re a moron. That might piss you off, if you are one of those who don’t know which book Salinger wrote, being called a moron and all. All morons hate it when you call them a moron.
Since writing his book, Salinger pretty much didn’t do anything worthwhile. Sure, he wrote a few more books, but nobody read them and nobody much cared. The Catcher in the Rye (fine, morons, there it is) was his magnum opus, and if I ever wrote something that damn good, I probably wouldn’t bother to write anything anymore either. I’d just go off and sit on a beach and drink mojitos with my royalty check money. Of course, then I might get drunk and call the guy a moron, because the guy usually is a moron.
But back to the book. What really knocks me out is a book, when you’re all done reading it, you wished the author that wrote it was a terrific friend of yours and you could call him up on the phone whenever you felt like it. The Catcher in the Rye knocked me out that way. I think it knocked out this Swedish guy, goes by the name J.D. California, because he wrote a sequel to The Catcher in the Rye where the main character is in his 70s and runs around New York City as a crazy old coot. I’m pretty sure that the book, 60 Years Later: Coming Through the Rye, sucks. I haven’t even read it, but if it was written by a Swedish guy obsessed with America and he can’t come up with a better pen name than “J.D. California?” I’m sure the book is a bunch of lousy recycled crap about what he sees on T.V. and thinks that is anything to do with the crumby America we live in.
Crumby and stupid or not, it was probably about time someone writes a sequel to The Catcher in the Rye. You might figure that Salinger would do it, but until today, I thought the old coot was dead. I guess he is still alive, 90 years old, he probably smells like that old guy smell, writing crap wishing he could write The Catcher in the Rye again.
Well, old man Salinger got right sore at “J.D. California,” for writing his sequel, and he’s suing him for it. I can see him now, old man Salinger and some stick up his ass crumby Ivy League lawyer, maybe even an academic with stupid patches on the elbows of his jacket, in court to stop J.D. California from writing the words “Holden Caufield,” because Old Man Salinger thinks that he owns that. Crazy old bastard. But, phony J.D. California doesn’t even call the guy “Holden Caufield.” He just uses the name “Mr. C.” Here’s Salinger’s lousy complaint full of self-important goddamned junk. God I hate that stuff.
If you really want to hear about the suit, the first thing you’ll probably want to know is what “fair use” is, and what Section 107 of the Copyright Act says and all that Mel Nimmer kind of crap but I don’t feel like going into it, if you want to know the truth. I don’t really write this blog for people who don’t know that kind of stuff already.
And like I said, I haven’t read anything by “Mr. California,” so maybe it is a “rip off,” like Old Man Salinger says, but I doubt it. Among other things, you’ll find that Old Man Salinger is not the first person who was ever confused and frightened and even sickened by human behavior and wrote a book about it. If his book is about a guy right out of high school, and “California Man” writes his about an old bugger, with maybe the same name and all, I can’t see any way that could be “copyright infringement,” at least not the section 106 or 107 version of it they taught us in my crumby law school. And if it pisses you off that there are guys out there who contribute one thing to the collective culture, and then think they have a monopoly on anything related to it, well you’ll be excited and stimulated to know. Many, many men have been just as troubled morally and spiritually as you are right now.
The thing is, anything that pisses you off and sickens you or stimulates you is probably something that another alienated wack job felt. Happily, some of them kept records of their troubles. You’ll learn from them – if you want to. Just as someday, if you have something to offer, someone will learn something from you. It’s a beautiful reciprocal arrangement. And it isn’t education. It’s history. It’s poetry. But, don’t you know, Old Man Salinger’s mind must be so addled by brain rot and the whisperings of his crumby Ivy League lawyer that he doesn’t give a shit and now “Mr. California” will stand trial for more than picking a really queer pen name.
The crappy part of it is that we’re seeing this happen again and again. First crappy Seinfeld and his suit in Castle Rock.Then bitchy J.K. Rowling proved that you can take the white trash out of the U.K. ghetto, but it doesn’t change that she’s trash. And we’re supposed to be all nice about it, and say that they are just living off the fruits of their creative labors. But really, they are just putting big “Fuck You” signs on every stupid corner of the culture and they don’t care – because they made their money, and their stupid stick-in-the-ass Ivy League lawyers don’t care either, because they feel entitled. And if you ever wondered reasons why Sonia Sotomayor is a crumby judge, all you need to do is read her Castle Rock opinion – Castle Rock Entertainment v. Carol Publ. Group, 955 F. Supp. 260 (S.D.N.Y. 1997) where, like morons usually do, she stacked the deck for the big guy and crapped on the First Amendment.
In that case, Beth Golub watched too much Seinfeld, so she wrote The Seinfeld Aptitude Test, a bunch of trivia questions testing the reader’s knowledge of the Seinfeld TV Show. It doesn’t get much more “fair” use than that, but Sotomayor decided to apply a quasi-trademark law view mixed with a bizarre and narrow view of the fair use doctrine – and that since Castle Rock might have one day expanded their works into the trivia book realm, that Golub was infringing on Castle Rock’s derivative use rights. Then the crumby Second Circuit upheld her opinion. See Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998).
So with the crazy opinion in Castle Rock, you know that this is why Old Man Salinger filed in the Southern District of New York. After he saw Rowling win her case – even though Ol’ Bill Patry even thought she shouldn’t have – then you know that Old Man Salinger was just drooling on his remote control when Matlock came on and then his Ivy asshole lawyers told him he could win. And you know he will even though there’s no way he can say that he was gonna write the sequel, because he just hides in some cabin in New Hampshire, writing nothing or writing something but not publishing it.
Knowing that is half the way to knowing that copyright law has gotten seriously fucked up. The Copyright Clause says that it is there to promote the progress of science and the useful arts – and they thought that writing books was a useful art, don’t you know, so how is it “progress” to stop this “California Dreamer Guy” from writing his sequel, when all that Salinger should be writing is his stinking tombstone. If you think about it, and read Sotomayor’s anti-speech dribble and drabble and drivel you’ll start to see that she, and Old Man Salinger are the reasons that the whole damn culture is covered with “Fuck You” signs written by Ivy League assholes. And all it proves is that if you had a million years to do it in, you couldn’t rub out even half the ‘Fuck you’ signs in the world. It’s impossible. So I’ll just make one of my own.
Fuck You, Old Man Salinger. Fuck You.
By Matthew Sanchez
A few recent intellectual property disputes have highlighted the fact that the decision to pursue legal action is both a legal and a moral choice. While concepts such as “fair use” help to ensure protection of both intellectual property rights while promoting creative expression, they can’t replace a simple concept we all learned in kindergarten: “treat others the way you’d like them to treat you.”
A couple of days ago, New York TV news station CW 11 convinced YouTube to take down a video from prank group Improv Everywhere that copied part of a CW 11 newscast. The twist as that the CW 11 newscast itself copied an earlier Improv video to unintentionally hilarious effect.
In the original Improv video, the troupe hijacked a staged funeral as an April Fools Day prank on viewers and passers-by. CW 11 reported the hijacking as a real prank on real funeral-goers that might have gone too far. The newscasters missed the fact that the prank wasn’t on the fake funeral-goers but, instead, on those who believed the video was real.
Judged solely on the legal merits, CW 11 might have the (slight) upper hand on the competing questions of infringement. CW 11 used only snippets of the Improv video and added news commentary, while Improv seems to have simply lifted a portion of CW 11 broadcast and uploaded it as is. Its arguable whether Improv has a fair use argument: the group does have in its favor that the use was noncommercial and it put the clip in wildly different context — that is, exposing CW 11′s blunder.
Regardless of the legal merits, there is no reason for copyright law to be involved here. CW 11 borrowed from Improv, and Improv then borrowed from CW 11. Both created expression that would not have been possible otherwise. If not for this needless legal dispute, we would all win.
A even more disappointing recent example comes from “fair use” darling Shepard Fairey. For those who haven’t been following along, he’s the defendant in the Associated Press’ big copyright flap over the Obama “HOPE” poster.
Last month, Fairey’s company Obey Giant Art Inc. alleged trademark violations in a cease-and-desist letter to Larkin Werner, a Pittsburgh Steelers fan who created a character that plays off of Fairey’s “Obey” images. Dubbed “Steelerbaby,” Werner’s character is a baby doll in a knit Steelers uniform who appears in images and merchandise, typically accompanied by an admonishment to “Obey” or “Obey Steelerbaby.”
Fairey has built a career and no small amount of celebrity by creating new art from existing material. The Obama poster, based upon a photo allegedly owned by AP, is a notable example. Werner’s Steelerbaby, which is more Internet meme than profitmaking venture, is no different. Like CW 11, Fairey might have the better end of the legal argument, but a little dose of common good sense shows that he (or his company) doesn’t have it “right.”
It’s my humble opinion that our IP system can only function alongside free creative expression if IP-holders — and IP-holder’s lawyers — first ask not whether they can win, but whether they should draw the line in the sandbox at all.
Congress shall have the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Unfortunately, the music industry is run by twats who believe that the Copyright Clause gives them a complete monopoly over the use of their material. For example – music publishing company, Bourne Co., the owner of the copyright to “When You Wish Upon a Star,” objected to a parody of the song in the Family Guy episode, “When You Wish Upon a Weinstein.” In this episode, Peter Griffin gets scammed into buying volcano insurance on his home in Quahog, Rhode Island. Lois gets fed up with the family’s constant financial problems, so peter decides that he needs a “Jewish money guy” to help him.
The scene at issue in this litigation depicts Peter looking out of a window up at the night sky in a manner similar to that of the toymaker Gepetto in Walt Disney’s Pinocchio when Gepetto is wishing for a “real boy.” (Op. at 4-5)
Peter then sings the now-famous parody, “I Need a Jew” to the tune of “When You Wish Upon a Star.”
Nothing else has worked so far
So I’ll wish upon a star
Wonderous shining speck of light
I need a Jew
Lois makes me take the rap
Cause our checkbook looks like crap
Since I can’t give her a slap
I need a Jew
Where to find
A Baum or Steen or Stein
To teach me how to whine and do
Though by many they’re abhored
Hebrew people I’ve adored
Even though they killed my Lord
I need a Jew
While he sings the song, Jews are depicted “as magical creatures that come to Peter in the form of a magical spaceship that turns into a flying dreidel.” (Op. at 5).
Family Guy’s creators initially sought permission from Bourne Co. for a license to use “When You Wish Upon a Star,” but Bourne refused. Therefore, the Family Guy creators decided to commission a song that would be close enough that the average person would recognize it as a parody of the original. When Bourne found out, from seeing a clip on YouTube, they filed a copyright infringement suit.
Any fool knows that parody is “fair use” under Section 107 of the Copyright Act, and constitutes protected speech under Campbell v. Acuff-Rose, 510 U.S. 569, 575 (1994) (2 Live Crew’s parody of “Pretty Woman” not an infringement upon the Roy Orbison original). However, there is a strange wrinkle in copyright law where many courts hold that parody is protected fair use, but satire is not. The difference comes down to whether the later work is criticizing or parodying the original, or if the later work is making a humorous commentary about something else — but using the original work as a tool to do so.
I believe that this distinction is a false one, and I am in good company. However, in Dr. Seuss Enters., L.P., v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), the Ninth Circuit held that a book about O.J. Simpson called “The Cat NOT in the Hat,” was merely riding on Dr. Seuss’ work to make fun of Orenthal, not making any kind of commentary about the Dr. Seuss original. The Second Circuit has largely adopted this logic, finding that a Jeff Koons photograph was satire, targeting entire genre but not the original upon which he relied to do so. See Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006). Compare Liebovitz v. Paramount Pictures, 137 F.3d 109 (2d Cir. 1998) (Naked Gun advertisement that mocked the Annie Liebovitz photo of a pregnant Demi Moore was parodical use).
Family Guy’s attorneys argued that their use of “When You Wish,” directly lampooned the original in two ways: 1) By skewering the saccharine nature of the original and by making a “sharp point about Walt Disney’s reputed anti-Semitism. (Op. at 14). Bourne Co., argued that “I Need a Jew” merely “ridicules anti-Semitism and Jewish stereotypes,” (Id.) but makes no criticism of the original Disney tune.
The court found Family Guy’s perspective to be more compelling:
The Court finds that by juxtaposing the “saccharin sweet” song “When You Wish Upon a Star” with “I Need a Jew” the Defendants do more than just comment on racism and bigotry generally, as Plaintiff contends. Rather, Defendants’ use of “When You Wish Upon a Star” calls to mind a warm and fuzzy view of the world that is ultimately nonsense; wishing upon a star does not, in fact, make one’s dreams come true. By pairing Peter’s “positive,” though racist, stereotypes of Jewish people with that fairy tale world-view, “I Need a Jew” comments both on the original work’s fantasy of stardust and magic, as well as Peter’s fantasy of the “superiority” of Jews. [I Need a Jew] can be “reasonably perceived” to be commenting that any categorical view of a race of people is childish and simplistic, just like wishing upon a star. (Op. at 15-16).
Bourne argued that the parody itself was unclear and unsupported by the evidence in the case. However, parodies are protected by the First Amendment, “even when they fail to speak clearly.” Relying upon Campbell v. Acuff-Rose, the court reminded Bourne that First Amendment protections do not only apply to clear, funny, or successful parodies. Even “inside jokes” and parodic falures are protected if the “parodic character can be reasonably perceived.” (Op. at 19).
by Jason Fischer
I’m no fan of our President-elect, but I have to tip my hat to him on this interesting bit of P.R.:
The new administration’s transition site, Change.gov, is being published under a Creative Commons license. (source) This means that the content is not subject to the draconian, life-plus-70 protection that is the default under the current federal copyright act. Does this mean that our next president may be in favor of copyright reform? One can only dream.
Perhaps McCain should have had someone who knows how to use a computer explain the DMCA to him before he voted for it.
UPDATE: Public Citizen sent this outstanding letter to both McCain and Obama.
Back in November, I wrote about the Harry Potter Compendium lawsuit in J.K. Rowling – Worst British Export Since Rick Astley. At the time, it seemed like I was the only one who thought that JK Rowling would prevail (even though I didn’t think she should).
Looks like I was right, unfortunately. The S.D.N.Y., following the Second Circuit’s decision in Castle Rock, held that the Compendium was not fair use. Opinion here. This is not a good day for fair use.
In February of 2007, Stephanie Lenz videotaped her toddlers dancing in her kitchen to the Prince song, “Let’s Go Crazy.” She then uploaded the 29 second video to Youtube. “Let’s Go Crazy” can be heard for 20 muffled seconds. Universal then sent Youtube a DMCA takedown notice, and Youtube complied.
Lenz sent YouTube a DMCA counter-notification pursuant to the little-used portion of the DMCA codified at 17 U.S.C. § 512(g) Lenz took the position that her video “constituted fair use of ‘“Let’s Go Crazy’ and thus did not infringe Universal’s copyrights. Lenz filed a counter-notification and demanded that the video be reposted.
YouTube re-posted the video on its website about six weeks later.” (Source at 2) Lenz then utilized an even more rarely-employed portion of the DMCA, 17 U.S.C. § 512(f), which provides for liability to be imposed on those who file DMCA notices without the requisite good faith belief that the material in question is an infringement of the copyright owner’s rights. Universal moved to dismiss claiming that it did not need to consider fair use when sending a DMCA notice.
Universal contends that copyright owners cannot be required to evaluate the question of fair use prior to sending a takedown notice because fair use is merely an excused infringement of a copyright rather than a use authorized by the copyright owner or by law. (Source at 5)
Lenz argues that fair use is an authorized use of copyrighted material, noting that the fair use doctrine itself is an express component of copyright law. Indeed, Section 107 of the Copyright Act of 1976 provides that “[n]otwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. Lenz asserts in essence that copyright owners cannot represent in good faith that material infringes a copyright without considering all authorized uses of the material, including fair use. (Source at 5)
The Court found that Lenz had the more persuasive argument:
Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. (Source at 6)
Universal then complained that it would be too hard to evaluate whether something was fair use. The Court didn’t buy it.
Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review. (Source at 7)
Too many copyright owners misuse the DMCA as a mandate to squash all use, fair or not, of their material. In a particularly egregious example, Professor Wendy Seltzer posted a clip of the NFL’s copyright notice, and the NFL issued a DMCA takedown notice. Story here. With any luck, this N.D. Calif. case will make copyright owners think twice before sending out a ham-fisted DMCA notice.
Because there just ‘aint enough soul-music-hitler-humor these days…
HT: Andrew Sullivan
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.
Safe for work… I promise.
If you have no idea who Bauhaus was, or if you never saw the movie “The Hunger,” don’t bother clicking.
Everyone else… click.
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.