Hello everyone. Before I post on the most recent episode, let me speak on something that actually brings my love of Lost and my training as an intellectual property lawyer together. As you have seen from my Lost posts and the blog roll on the right, I always refer you to Erika Olson's fantastic recaps over at Long Live Locke. Well, a guy by the name of Seanie B has been offering video recaps on You Tube of this season's episodes, apparently for TV Guide (I'm not going to link directly to his You Tube account because I don't want this guy getting any more popular). Seanie B has been blatantly plagiarizing Erika's recaps, as well as other Lost recappers. You can see the clear copyright violation in this side-by-side comparison provided by Doc Arzt.
Essentially, Erika's recaps are fixed (on the website) expressions (written communications) that have a modicum of creativity (the words she chooses are sufficient creativity, but I would venture to say her wit and humor is the true creativity). Those are the elements of a work that is protected under copyright. A coyright holder has the right to control other uses of her work, including, specifically, the right to a public performance of her work. In other words, she can control any oral recitations of her writings on a You Tube post.
Now, the facts of the show can be freely discussed by all. If Erika writes, "Ben allowed Alex to be killed by Keamy," I can also write, "Ben allowed Alex to be killed by Keamy." Facts are not protected by copyright. As well, anyone who talks about Lost and dares to write about it (your humble blogger included) can speak about the ideas behind the show. Ideas are not protected by copyright; it is the expression of those ideas that is protected. Any kind of flourish Erika uses to express her thought about the ideas behind the show, where she thinks the show is headed, and even the layout/order she talks about the show is all protected. That is what Seanie B has stolen from her. Fortunately, Erika has said she has been receiving some great advice from some intellectual property lawyers and is working hard to have the matter resolved.
Folks, if you love the show, you should absolutely talk about it, but do so in your own words. There is so much within the show to talk about that we don't need to steal other people's work. And read Erika's posts to show your support! Recap coming soon.
Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts
Saturday, October 10, 2009
"Hope" for Fairey
Some of you may have heard of the case of AP v. Shepard Fairey. Fairey created the famous Obama poster on the left. It was based on this AP photo on the right.
AP claims that Fairey violated the AP's copyright in the photo (photos can be copyrighted because the selection of angle, color, brightness, etc. illustrate sufficiently the creativity and originality required to secure a copyright). Many in the legal field have been making the case that Fairey is in the clear here due to the doctrine of fair use. For a good fair use analysis, see Tim O'Brien's blog here.
Essentially, I think this is right. Fairey has clearly created a derivative work of the AP's photo. Derivative works are adaptations or visible reuses of an existing work. The right to create derivative works based on one's original work, lie within the copyright of the original author. Fairey added his own creativity to the AP photo, but his poster is clearly based on the AP photo. However, up to the point the suit was filed, Fairey hadn't made any money on the poster; any revenue generated by selling the posters was reinvested to make more posters. Lack of commercial profit is a factor in the fair use analysis. Further, and I think more importantly, the work should be considered "transformative" in that it added something to the social discourse (the election). Transformative works are more often than not considered fair uses -- we want people to create more works that add to the social discourse by commenting on works already in the public sphere.
I think the only possible problem Fairey's fair use defense will run into is that the AP's market for their photo as a poster. Under the ruling in the National Geographic Society v. Classified Geographic, Inc., 27 F.Supp 655 (D.Mass 1939), if a copyright owner has a market for derivatives of its own work, fair use will not prevail. However, as the AP is supposed to be in the reporting business, and not in the campaigning business (although the AP's "neutrality" has been called into question a number of times), the chance they were going to make and sell Obama campaign posters is virtually nil.
All in all, it doesn't seem like the AP really has a case. In fact, this is eerily similar to the Jones Day case we discussed below; another case of an entity with a lot of money trying to push around a small fry. I know, this happens all the time, but I just hope Fairey holds firm and sees this through. The AP has already been dropped by a number of papers and is facing a fiscal crisis of its own, so perhaps Fairey can do some pushing of his own.
AP claims that Fairey violated the AP's copyright in the photo (photos can be copyrighted because the selection of angle, color, brightness, etc. illustrate sufficiently the creativity and originality required to secure a copyright). Many in the legal field have been making the case that Fairey is in the clear here due to the doctrine of fair use. For a good fair use analysis, see Tim O'Brien's blog here.
Essentially, I think this is right. Fairey has clearly created a derivative work of the AP's photo. Derivative works are adaptations or visible reuses of an existing work. The right to create derivative works based on one's original work, lie within the copyright of the original author. Fairey added his own creativity to the AP photo, but his poster is clearly based on the AP photo. However, up to the point the suit was filed, Fairey hadn't made any money on the poster; any revenue generated by selling the posters was reinvested to make more posters. Lack of commercial profit is a factor in the fair use analysis. Further, and I think more importantly, the work should be considered "transformative" in that it added something to the social discourse (the election). Transformative works are more often than not considered fair uses -- we want people to create more works that add to the social discourse by commenting on works already in the public sphere.
I think the only possible problem Fairey's fair use defense will run into is that the AP's market for their photo as a poster. Under the ruling in the National Geographic Society v. Classified Geographic, Inc., 27 F.Supp 655 (D.Mass 1939), if a copyright owner has a market for derivatives of its own work, fair use will not prevail. However, as the AP is supposed to be in the reporting business, and not in the campaigning business (although the AP's "neutrality" has been called into question a number of times), the chance they were going to make and sell Obama campaign posters is virtually nil.
All in all, it doesn't seem like the AP really has a case. In fact, this is eerily similar to the Jones Day case we discussed below; another case of an entity with a lot of money trying to push around a small fry. I know, this happens all the time, but I just hope Fairey holds firm and sees this through. The AP has already been dropped by a number of papers and is facing a fiscal crisis of its own, so perhaps Fairey can do some pushing of his own.
Hey You, Non-Lawyer, You Ever Heard of Jones Day?
I had a request in the comments on the Pat Sajak thread about my thoughts on the Jones Day v. BlockShopper case which settled last week. As I concentrated on Intellectual Property in law school, here's my take. Briefly, BlockShopper is a website that chronicles real estate sales. The site detailed the purchase of pricey condos by two associates at the law firm Jones Day. The site used the firm's name and pictures of the associates (pulled from the firm's website) in the description. Jones Day sued BlockShopper for trademark infringement.
This appears to me to be a simple case of a firm being embarassed and not wanting to appear to be giving away lavish salaries during these Tough Economic Times®. In my opinion, Jones Day's chance of success on a trademark infringement claim was about .00001%. Jones Day claimed BlockShopper was diluting Jones Day's trademark and causing customer confusion.
Without getting too lost in the legal weeds, the customer confusion claim (the prototypical trademark infringement claim) is almost completely without merit. Jones Day would have to have proven customers of the BlockShopper site, or of Jones Day itself, thought Jones Day somehow sponsored BlockShopper -- that BlockShopper was a Jones Day product. Click around the site. Other than the paid advertising, do you get any inclination that BlockShopper is somehow sponsored by anyone, let alone Jones Day?
The blurring claim is ridiculous because as a threshold issue, the trademark being diluted needs to be a "famous mark." Famous marks are defined by federal law as marks that are “widely recognized by the general consuming public of the United States.” Anyone out there in the non-legal world ever heard of Jones Day? McDonald's? Yes. Nike? Yes. Jones Day? No. Let's assume that Jones Day is a famous mark, then what is the analysis? Well, Jones Day would then have had to prove that BlockShopper's use was so pervasive that when a customer heard or saw "Jones Day" he or she would say, "Jones Day? Hmmmm.....is that the law firm or the real estate website?" Again, proving this would have been virtually impossible.
On top of the ridiculousness of the claims themselves, BlockShopper would have also likely been protected by fair use. Fair use is the idea, found in both statutory and case law, that sometimes use of another's trademark that may be illegal is still permissible. There are numerous fair uses: one being comparison (e.g. Pepsi showing a Coke machine in its commercials), but of direct importance, the use of trademarks descriptively. Just as NBC can talk about Starbucks (and put a picture of Starbucks' logo on the screen) to describe the closing of hundreds of Starbucks stores, so too can BlockShopper use Jones Day's name to describe the public real estate transactions of its associates.
To me, this seems like an embarrassed large company using it's financial power to push around the person doing the embarrassing. If Jones Day had pursued a copyright claim related to BlockSopper's use of Jones Day's pictures, that would have been a lot more reasonable; perhaps not advisable, but at least the argument would have been rooted in the law. BlockShopper, faced with ridiculous legal bills in order to defend these ridiculous claims, opted to settle by placing full addresses linked to the associates' Jones Day bio pages and stating that more info on the associates are available on the site. It's a shame that BlockShopper had to settle, but the prospect of losing the site because of mounting legal debt is far more adverse.
Thanks to the following sites for some great info on the case: The Legal Satyricon, Consumer Law & Policy Blog (also some info on Jones Day's other attempts to use trademark infringement claims to bully people being critical of them), and Slate.
This appears to me to be a simple case of a firm being embarassed and not wanting to appear to be giving away lavish salaries during these Tough Economic Times®. In my opinion, Jones Day's chance of success on a trademark infringement claim was about .00001%. Jones Day claimed BlockShopper was diluting Jones Day's trademark and causing customer confusion.
Without getting too lost in the legal weeds, the customer confusion claim (the prototypical trademark infringement claim) is almost completely without merit. Jones Day would have to have proven customers of the BlockShopper site, or of Jones Day itself, thought Jones Day somehow sponsored BlockShopper -- that BlockShopper was a Jones Day product. Click around the site. Other than the paid advertising, do you get any inclination that BlockShopper is somehow sponsored by anyone, let alone Jones Day?
The blurring claim is ridiculous because as a threshold issue, the trademark being diluted needs to be a "famous mark." Famous marks are defined by federal law as marks that are “widely recognized by the general consuming public of the United States.” Anyone out there in the non-legal world ever heard of Jones Day? McDonald's? Yes. Nike? Yes. Jones Day? No. Let's assume that Jones Day is a famous mark, then what is the analysis? Well, Jones Day would then have had to prove that BlockShopper's use was so pervasive that when a customer heard or saw "Jones Day" he or she would say, "Jones Day? Hmmmm.....is that the law firm or the real estate website?" Again, proving this would have been virtually impossible.
On top of the ridiculousness of the claims themselves, BlockShopper would have also likely been protected by fair use. Fair use is the idea, found in both statutory and case law, that sometimes use of another's trademark that may be illegal is still permissible. There are numerous fair uses: one being comparison (e.g. Pepsi showing a Coke machine in its commercials), but of direct importance, the use of trademarks descriptively. Just as NBC can talk about Starbucks (and put a picture of Starbucks' logo on the screen) to describe the closing of hundreds of Starbucks stores, so too can BlockShopper use Jones Day's name to describe the public real estate transactions of its associates.
To me, this seems like an embarrassed large company using it's financial power to push around the person doing the embarrassing. If Jones Day had pursued a copyright claim related to BlockSopper's use of Jones Day's pictures, that would have been a lot more reasonable; perhaps not advisable, but at least the argument would have been rooted in the law. BlockShopper, faced with ridiculous legal bills in order to defend these ridiculous claims, opted to settle by placing full addresses linked to the associates' Jones Day bio pages and stating that more info on the associates are available on the site. It's a shame that BlockShopper had to settle, but the prospect of losing the site because of mounting legal debt is far more adverse.
Thanks to the following sites for some great info on the case: The Legal Satyricon, Consumer Law & Policy Blog (also some info on Jones Day's other attempts to use trademark infringement claims to bully people being critical of them), and Slate.
Protect the Source
While it appears that the only thing Congress is concerning itself with is the stimulus, Justin Miller, writing for The Atlantic's new Politics blog, gives some details on the House picking up some legislation I feel is rather important: the Free Flow of Information Act -- protection for journalists and their sources.
The whole reason the right to a free press is enshrined in the 1st Amendment is so that reporters can reveal the inner workings of government, corporations and other bastions of power, and expose any hidden cancers within them, without the fear of reprisal. How can they do this necessary work if those with knowledge within these institutions are unwilling to step forward because they might be exposed? While we do have whistleblower protection laws, nothing has extended to journalists themselves.
Per Justin's summary, there could be some possible issues, namely whether bloggers are covered (see the definition of "journalist"), and that the government only need show a preponderance of evidence to have the source or documents revealed. The preponderance test jumps out at me.
*I apologize in advance for the legal mubo-jumbo to follow. I am a lawyer after all.*
When laws are scrutinized to see if they infringe on certain rights, depending on what is being infringed, different tests are utilized. The least amount of scrutiny is whether the government has a rational basis in enacting the law (e.g. giving tickets for running red lights). The middle level is known as intermediate scrutiny and requires that a law relate to important government interests (e.g. requiring separate men's and women's bathrooms in public facilities). Lastly, there is strict scrutiny, which requires that a law must fail unless the government has a "compelling government interest." This is invoked when a right granted in the Constitution is potentially infringed (e.g. Zoroastrianists can't practice their religion). Requiring a "preponderance" of the evidence is equal to the rational basis test. The requirement of a jury to find guilt "beyond a shadow of a doubt" is equal to strict scrutiny.
While anonymous source cases don't involve the direct restriction of a free press, which would clearly invoke strict scrutiny, I feel laws effecting the ability of the press to conduct it's job and fully realize it's 1st Amendment right should be subjected to more scrutiny than what is essentially a rational basis. An intermediate scrutiny seems appropriate here. Regardless, this law, in my humble opinion, is the right way to go as the media and news coverage explodes. Thoughts?
The whole reason the right to a free press is enshrined in the 1st Amendment is so that reporters can reveal the inner workings of government, corporations and other bastions of power, and expose any hidden cancers within them, without the fear of reprisal. How can they do this necessary work if those with knowledge within these institutions are unwilling to step forward because they might be exposed? While we do have whistleblower protection laws, nothing has extended to journalists themselves.
Per Justin's summary, there could be some possible issues, namely whether bloggers are covered (see the definition of "journalist"), and that the government only need show a preponderance of evidence to have the source or documents revealed. The preponderance test jumps out at me.
*I apologize in advance for the legal mubo-jumbo to follow. I am a lawyer after all.*
When laws are scrutinized to see if they infringe on certain rights, depending on what is being infringed, different tests are utilized. The least amount of scrutiny is whether the government has a rational basis in enacting the law (e.g. giving tickets for running red lights). The middle level is known as intermediate scrutiny and requires that a law relate to important government interests (e.g. requiring separate men's and women's bathrooms in public facilities). Lastly, there is strict scrutiny, which requires that a law must fail unless the government has a "compelling government interest." This is invoked when a right granted in the Constitution is potentially infringed (e.g. Zoroastrianists can't practice their religion). Requiring a "preponderance" of the evidence is equal to the rational basis test. The requirement of a jury to find guilt "beyond a shadow of a doubt" is equal to strict scrutiny.
While anonymous source cases don't involve the direct restriction of a free press, which would clearly invoke strict scrutiny, I feel laws effecting the ability of the press to conduct it's job and fully realize it's 1st Amendment right should be subjected to more scrutiny than what is essentially a rational basis. An intermediate scrutiny seems appropriate here. Regardless, this law, in my humble opinion, is the right way to go as the media and news coverage explodes. Thoughts?
Subscribe to:
Posts (Atom)
Posts
