A recurring theme in our posts under the “Fair Use” tag has been the rise of “transformative use” as a litmus test that not only supplements, but often virtually supplants, the four statutory fair use factors—the purpose and character of the secondary use, the nature of the original work, the amount of the original used, and the effect on the potential market for the original. This trend reached its apogee, at least for now, with the Second Circuit’s ruling in Cariou v. Prince, discussed here and here. Judge Frank Easterbrook of the Seventh Circuit has taken note of this trend, and in his ruling yesterday in Kienitz v. Sconnie Nation—a case involving not appropriation art but the politically motivated t-shirt pictured here—he took a moment to register, in a somewhat gratuitous aside, his disapproval.
Posted by expresswrittendissent on September 16, 2014
We will likely never know whether a monkey, put in a room with typewriter and given sufficient time, will actually type out Hamlet, but we do know now that a monkey given a camera can take a pretty good selfie. Wildlife photographer David Slater found this out when, during a shoot in Indonesia, a crested black macaque stole his camera and, apparently among other random exposures, captured a winning likeness of himself. The photo is now the subject of a copyright dispute between Slater, who claims ownership of the copyright, and Wikimedia Commons, which believes it belongs in the public domain. Out of respect for Slater’s claim, which I do not find frivolous, I will not reproduce the selfie, but you have got to check it out here. It really should put to rest any doubts about the theory of evolution.
Press accounts suggest that Slater is arguing that he owns the copyright because it was his camera, and Wikimedia is arguing that because the photo was taken by a non-human, there can be no “author.” I suspect the actual arguments are more nuanced, because both of these positions seem like misfires to me, at least under U.S. copyright law.
Posted by expresswrittendissent on August 7, 2014
A few weeks ago, in writing about the Supreme Court’s ruling in Petrella v. MGM, in a post entitled “The Breyer Ascendancy Deferred,” I hazarded a fearless prediction:
I am wagering that Justice Breyer will, despite this setback, be voting with and perhaps writing for the majorities in the two most important IP cases coming down over the next six weeks, American Broadcasting v. Aereo and Alice Corp. v. CLS Bank.
Even a broken clock is right twice a day. Justice Breyer did indeed vote with the majority in Alice Corp. last week, and now he has written for the six-justice majority in Aereo. Surprisingly to me though, Breyer, the leading intellectual property skeptic on the Supreme Court, has written an opinion that strikes down Aereo’s business model as directly infringing TV broadcasters’ exclusive right of public performance on the basis of what I think is a rather tendentious reading of the Copyright Act.
Posted by expresswrittendissent on June 26, 2014
As has been widely reported, the Trademark Trial and Appeal Board has ruled that “redskins” is deeply offensive slur and can not be federally registered as a trademark under 15 U.S.C. § 1052(a), which prohibits registration of marks that contain “immoral, deceptive, or scandalous matter or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (We last looked at that statute when the TTAB denied registration to “cock sucker” for rooster-shaped lollipops.)
I am pleased to see this ruling and hope it will add further impetus to the drive to rename the Washington pro football franchise. But in my self-appointed role as debunker of popular press reporting on IP law issues, the past 24 hours have been hell, even putting aside the CNBC personality who asked how the team could go on without “patent” protection. So a few facts are in order.
Posted by expresswrittendissent on June 19, 2014
We have been following the rather swift progress through the courts of Klinger v. Conan Doyle Estate, a case which raises the fascinating question of when copyright protection on “franchise” literary characters who develop over a series of works, published over a period of many years, expires. Klinger, the editor of books containing original stories based on the Sherlock Holmes character and other elements of Arthur Conan Doyle’s original stories, brought an action seeking a declaratory judgment that copyright protection had expired on a long list of Sherlock Holmes story elements which were now in the public domain, excusing him from any obligation to pay royalties to the estate. (See CEASE AND DESIST LETTERS FROM BEYOND THE GRAVE–CONAN DOYLE EDITION for a description of Klinger’s complaint and CONAN DOYLE ESTATE LOSES ROUND 1 for a summary of the district court opinion largely vindicating Klinger’s position.) This week the Seventh Circuit weighed in with an opinion affirming the district court, penned by Circuit Judge Richard Posner. As with any Posner opinion, even affirmances, this one adds original analysis well worth a closer look.
Posted by expresswrittendissent on June 18, 2014
In some earlier posts (titled The Breyer Ascendancy and the The Breyer Ascendancy, Part II) I have suggested that we may have reached an inflection point where Justice Breyer is no longer just the Supreme Court’s leading skeptic on intellectual property protection, but where he is primed to lead his colleagues in a major retrenchment of IP protections. Though I think we will see more evidence of that in some of the decisions still to come down before the end of the current term, yesterday’s 6-3 ruling in Petrella v. MGM, a copyright case brought in 2009 involving Martin Scorsese’s film Raging Bull, which was first released in 1980, shows that there is still a strong constituency on the Court, led by Justice Ginsberg, that is far less hostile to strong copyright protections than is Justice Breyer. Why did a majority allow a copyright infringement case–brought 29 years after the allegedly infringing film was released–to go forward, when the statute of limitations on such cases is three years?
Posted by expresswrittendissent on May 20, 2014
It has been almost 25 years since Laramie, a small Philadelphia-based purveyor of “rack” (read “knockoff”) toys switched roles and scored an enormous hit with its TV-advertised, patented, and SUPER SOAKER® branded line of air pressure water guns. As Laramie’s chief intellectual property enforcer at the time, I remember well several frenetic years of legal activity as we tried, generally successfully, to protect Laramie’s proprietary position against knockoff artists foreign and domestic, and watching with astonishment as the company established new and ever-higher price points for what was still, after all, a rather cheap piece of plastic. Spring was always the busiest time of year, when both the current year’s retail selling season for water guns and the product cycle for the following year’s lines were ramping up. Like Proust’s madeleine, the U.S. District Court for New Jersey’s opinion last week in Buzz Bee Toys v. Swimways Corp., has brought these memories flooding back.
Posted by expresswrittendissent on May 19, 2014
The American Society of Composers, Authors, and Publishers (ASCAP) is 100 years old today. I have a guest post on ASCAP’s profound influence on the course of American popular music over at the Oxford University Press blog.
Posted by expresswrittendissent on February 13, 2014
Early this year, we reported on the filing of Klinger v. Conan Doyle Estate in the federal district court in Chicago. Leslie Klinger is the editor of a collection, called A Study in Sherlock, containing original stories based on the Sherlock Holmes character and other elements of Arthur Conan Doyle’s original stories. He has prepared a sequel entitled In the Company of Sherlock. The publisher of the first book acceded to demands of the Conan Doyle Estate that it take a license and pay a royalty, but the publisher of the sequel balked, and the book remains unpublished in legal limbo.
Klinger brought an action seeking a declaratory judgment that a long list of Sherlock Holmes story elements—including such characters as Professor Moriarity, Sherlock’s smarter brother Mycroft, his landlord Mrs. Hudson and the Baker Street Irregulars, Dr. Watson’s “thick neck and small moustache,” along with such Holmesian traits as his skills in chemistry, disguise, and maritial arts, his methods of reasoning, and his drug addiction—were in the public domain.
We can now report that on December 23 Klinger got his Christmas wish—a summary judgment declaring that virtually all important Sherlock Holmes story elements are free for public use—albeit with one proviso.
Posted by expresswrittendissent on December 29, 2013
We have been following the ups and downs of The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, since the inception of this blog. After the parties’ grand bargain, which had the potential to create a unique on-line repository of virtually all the world’s literature under Google’s auspices, was rejected, primarily due to antitrust concerns, the case came to center on the Google Books search engine, which allows full-text searching of unlicensed copyrighted books, but displays only small “snippets” as search results.
Last time we checked in, the Second Circuit Court of Appeals had decertified the plaintiff class, and ordered Judge Denny Chin to rule on Google’s fair use defense first. As we noted, the appellate panel’s “comments at the oral argument and its suggestion that resolution of fair use could ‘moot’ class certification strongly telegraph[ed] acceptance of Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.” Not surprisingly, in a 30-page opinion issued November 14, Judge Chin so ruled.
Posted by expresswrittendissent on November 17, 2013