1. Is it Fair Use? Information Wants to Be Free, but Copyright Is at the Turnpike

    We Took the Whole Thing, But it Was for Journalism!

    I blogged about Swatch’s dispute with Bloomberg a couple of years ago. At the time, Bloomberg’s motion to dismiss had just been denied, but the trial court explicitly did not address fair use, mostly because it couldn’t at that early stage.


    One of the lucky 333 analysts invited to the Swatch earnings call. Photo taken by Eric Danley under this Creative Commons license.

    The Secret Pleasures of Earnings Calls

    Swatch is a Swiss watch-maker. You may have heard of its products. More important (for our purposes), it’s a major, publicly-traded international corporation. And like most such companies, it routinely holds an “earnings call” (or “analyst call”) right after it files (with the SEC) and release (to the public) its earnings report. The earnings report is required of public companies so investors know certain basic information about the company. The earnings call is optional, but it gives the company a chance to explain the earnings report, while potentially opening itself up to awkward questions from some pretty sharp and skeptical folks.

    As you might expect, Swatch doesn’t like the awkward questions, so it tries to limit the audience of … Read More»

  2. Is it Fair Use? (Appellate Edition): Transformers in the Art Gallery

    Parody ≠ Transformative Use

    I know you’ve been playing Is it Fair Use? the fast-paced, brain-teasing game that’s sweeping the nation. That means you’ve already played the very first installment, which involved an “appropriation artist,” some photographs of Rastafarians, and a cancelled art show. If you haven’t, or you want to refresh your recollection, go play that round, then come back here. Meanwhile, here’s the main image I focused on in that case, Prince’s Graduation (right), and the Cariou photograph he borrowed:


    Left: Patrick Cariou, Photograph from Yes Rasta, p. 118. Right: Richard Prince, Graduation

    So it wasn’t fair use, right? And I said that the decision (read it again here) was about as well-reasoned as you’ll find? I thought the two most important facts were (1) that Cariou had an exhibition planned but it fell through when Cristiane Celle, the gallery owner, found out about Prince’s exhibition; and (2) that this, a work called Graduation, was a typical example of Prince’s “transformation” of Cariou’s work. I expressed concern, however, that the case seemed to turn on how well the artist was able to explain himself.

    Is his Case More Appealing Than his “Art”?

    Let’s play … Read More»

  3. Is it Fair Use? Four Seasons of Fair/Foul Use

    Ed Sullivan vs. the Jersey Boys

    A long time ago, about 50 years ago, in the 1960’s, there was a band from New Jersey called the Four Lovers. When they failed at a 1960 audition to be the lounge singers at a New Jersey bowling alley called the Four Seasons, they re-named the band after the bowling alley, just so they could get something out of audition. In just a few years, they were the United States’ second-most popular band after the Beach Boys. They were the sort of band my mother (who grew up pretty close by in Philadelphia) loved: handsome, blue-collar, immigrant (the members were all Italian-American), smooth, well-groomed, a rock n’ roll band that was more pop than rock.

    Even if you’re in your 20’s, you have heard of their songs, and you recognize Frankie Valli’s astounding falsetto, in songs like “Big Girls Don’t Cry,” “My Eyes Adored You” and “Rag Doll.” Ironically, the Four Seasons came from tough backgrounds, but worked hard to appear clean-cut, whereas later rock bands affected the kind of street-tough backgrounds the Four Seasons tried to hide.

    Even after the Beatles arrived, the Four Seasons remained immensely popular. Indeed, they were … Read More»

  4. Throwing Back the Throwbacks on Is it Fair Use?

    When History Really Just Commercial Nostalgia?

    Last week I wrote about a copyright lawsuit involving the Baltimore Ravens, and in so doing, managed also to mention the San Francisco 49ers*. They both won their respective games and will now meet in the Super Bowl. In the future, I will charge for this sort of thing.

    * Because I digressed into the history of the Ravens, who kind of used to be the Cleveland Browns, who used to be in the rival All-American Football League, until it folded and the Browns were invited into the NFL, along with … the 49ers. It’s not very a very direct connection, but I never let directness or the lack thereof interfere with my discussions about professional football, which I discuss with the sort of passion reserved only for kids who were always about 20 pounds too light and a half-step too slow to have a reasonable chance at ever starting.

    I also mentioned, in connection with said copyright lawsuit, that a recent decision in that lawsuit (only the latest of many) yielded not one but two separate fair-use rulings.* And that both of these rulings were worthy of inclusion in Is it Fair Use?Read More»

  5. Is It Fair Use? Fowl Doings in Raven-land`

    A Case that Just Keeps Giving to Copyright Lawyers

    It’s been a long time since our last edition of the fast-paced game that’s sweeping the nation, Is It Fair Use? Yes, I’ve been busy, but the real reason is that there just haven’t been any really fun fair use cases in a while. It may turn out that 2011 was just a banner year for fair use cases, what with Elf off the Shelf (twice), Green Day’s screaming icon and the Rasta-rip-off case. And who could possibly forget the “What What in the Butt”/South Park case, which piled weirdness upon weirdness? 2012? Eh, not so much.

    Bouchat v. Baltimore Ravens is one of the most vigorously litigated copyright cases of all time. No fewer than seven published opinions have emanated from the case, including three published appellate opinions. I was a little surprised and delighted to find that it’s still going strong. What’s better is the most recent opinion involves not one but two issues of fair use, which went different ways. The opinion (which I’m not linking to now) provides handy insight into the sticky question of what is fair use.

    Play part of two of Read More»

  6. More Artist-on-Artist Fair Use Action: An Iconic Scream, a Rap Icon

    Can Green Day Exit Through the Gift Shop?

    Are you ready for another installment of Is it Fair Use?, the fast-paced, action-packed game in which I give you a fact pattern, and you take a blind stab at whether the court found or didn’t find fair use. Today’s installment is brought to you by Green Day, and also by the Oscar-nominated documentary, Exit Through the Gift Shop.

    Our story begins with the artist Los Angeles artist Derek Seltzer, who created a work of art, which he called, Scream Icon. I’d show it to you, but it’s impossible to find an image that isn’t part of a story that gives away the ending! It consists of a black-and-white portrait of a fanged man in a rictus of a huge, well, scream. AAAAAAARG! Sort of like that.

    Seltzer put this image onto posters and stickers, and then posted those images on walls, telephone poles and what-not around town. It doesn’t appear from the opinion that Seltzer had much success selling copies of Scream Icon, though he did license it once to a rock band for use in a music video.

    One day, another artist, Roger Staub, happened across … Read More»

  7. Elvish Is King: Parody in Trademark Cases

    Is it Fair Use? Looks at Trademark

    We’ve already looked at the Elf On/Elf Off” decision (CCA & B, LLC v. F + W Media Inc., N.D. Ga. Sept. 22, 2011) with respect to copyright infringement, but it also has an extensive fair use analysis for trademark. Here at Is it Fair Use?, we don’t discriminate against trademark-flavored fair use! Let’s play!

    Elf Off’s Use of Elf On’s Marks

    You can read about the two books’ content here. In addition, the court compared the two books’ covers and other trademark indicia as follows:

    Defendant’s book cover includes the book title in a font that is quite similar to Plaintiff’s stylized logo font, an image of an elf in a green costume dangling from a shelf, the subtitle “A Christmas Tradition Gone Bad,” a byline attributing the story to Horace the Elf, and a final sentence, in red font: “A new holiday parody – for Mom and Dad!” (Emphasis in original.) The book is also 10” by 10” by .25” – much thinner than Plaintiff’s box set. Elf Off is not sold with a doll or special packaging. The back cover shows

    Read More»
  8. Copyright: Is it Fair Use? Elf On! Elf Off!

    Or, the Elf Done Gone.

    Welcome to another edition of Is it Fair Use? the game in which I present the facts and you take a blind stab at whether the court found fair use.

    Judges clearly live for parody cases. Remember how much fun the judge had in the “What What (in the Butt)” vs. South Park case? This judge has almost as much fun in a case pitting the wholesome The Elf on the Shelf (“Elf On”) against its alleged parody, The Elf off the Shelf (“Elf Off”). I’ll link to the opinion here, but don’t read if you’re playing Is it Fair Use? The judge gives it away in the first paragraph!

    Here is how the judge sets the stage:

    The motion now before the Court calls to mind the old adage, “You can’t judge a book by its cover.” This time-worn advice instructs us to give moreattention to the substance of a work than its shiny packaging. However, the Court’s ruling on the instant motion turns on whether in the madness of holiday shopping it is likely that the average consumer of Plaintiff’s book, possibly giddyfrom gingerbread lattes

    Read More»
  9. Copyright: Is it Fair Use? What What (in the Butt) vs. South Park

    Welcome to Our Second Episode of “Is it Fair Use?”

    This opinion by Judge J.D. Stadtmueller in Brownmark Films, LLC v. Comedy Partners is pretty close to priceless, dealing, as it does, with South Park’s send-up of the notorious “What What (in the Butt)” viral video sensation. Here’s how Judge Stadtmueller introduces the issues and the parties:

    Federal lawsuits seldom touch on such riveting subjects and regard so many colorful parties as the present matter. The plaintiff, Brownmark Films, LLC (“Brownmark”), is the purported co-owner of a copyright in a music video entitled “What What (In the Butt)” (“WWITB”), a nearly four minute ditty regarding the derrière of the singer of the underlying work. The music video begins with an array of bizarre imagery – from a burning cross to a floating pink zeppelin – and only gets stranger from there. The heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: “I said, what what, in the butt” and “you want to do it in my butt, in my butt.” Meanwhile, the defendants are the entities involved

    Read More»
  10. I Know Fair Use When I See It: A Copyright Complex

    Welcome to the Game We’re Calling, “Is It Fair Use?”

    I’m starting a new occasional series called, “Is it Fair Use?” where I set out the facts from an actual copyright or trademark decision involving fair use, and you get to guess how the court ruled.*

    *  This idea is completely ripped off from one of my absolute favorite law blogs, The TTABlog.  It’s highly specialized and wonky, but it is up-do-date, erudite, witty and consistent.

    For my inaugural “Is it Fair Use?” I’m going back to a fairly old case (March of this year) that has been in the news again because its interlocutory appeal has been approved by the Second Circuit (for obscure procedural reasons, this had been in doubt).* Some of you will recognize it immediately, even though I’ll suppress some of the more recognizable facts. Don’t spoil it for the others! Even so, it’s hard to resist starting with this case because everyone thought this was an easy, slam-dunk, open-and-shut fair-use case, but no one agreed on what the easy, slam-dunk, open-and-shut ruling should have been.

    * This constitutes a perfectly good reason to dredge up an old decision. Really.

    The defendant is an artist.  … Read More»

Rick and Tara are experienced lawyers who have set out to serve clients in a new way. Rick's roots reach back to his Silicon Valley home, where he first developed his litigation-oriented practice before moving to Nashville in 2004. Tara got her start in the music publishing business in Nashville in 1998 and has used that experience to form the basis of her transactional law practice since graduating from law school in 2004.
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