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. Funny Just Isn’t Enough – What’s “Parody” in Copyright

    People can be terribly clever sometimes.  Take the Holderness Family, for example.  Apparently, mom was too busy running triathlons to sit down and write out a family newsletter, so the family made up a rap to the music of “Miami,” by Will Smith, and made the cutest video, which has now, of course gone viral (Dad’s a news anchor, which gives him a little bit of an unfair advantage, in case you were feeling suddenly inadequate about your holiday preparation skills…):

    Super cute. But not a parody.

    If you’re an ancient Greek and your understanding of the word parodeia is “song sung alongside another,” then these new lyrics to Will Smith’s composition would probably qualify.  But the definition has changed over time and through the formation of the English language, which is the one we care about for purposes of American copyright law.

    I am jumping to the issue of whether the Christmas Jammies song is a parody because if it isn’t, then what the Holdernesses did with Will Smith’s song isn’t fair use. (There’s no category of fair use for writing new lyrics to pre-existing music unless it’s a parody).  And if it isn’t fair use, then it’s copyright … Read More»

  3. A Requiem for a Lawsuit Signifying Nothing: De Minimis and Fair Use

    Insert Pun Here: “Dead,” “Requiem,” “Past,” “Woody”

    A lot of people breathed a huge sigh of relief when a Mississippi federal judge dismissed (at the pleadings stage) claims for copyright infringement stemming from a paraphrase of a well-known William Faulkner quote in a Woody Allen movie. Then a lot of people scratched their heads at the basis: fair use, not something like de minimis (i.e., too short to be actionable)?

    The allegedly infringing quote from the movie, Midnight in Paris, is: “The past is not dead. Actually, it’s not even past. You know you said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.”

    The quote from the Faulkner novel, Requiem for a Nun, one of the Yoknapatawpha novels*: “The past is never dead. It’s not even past.”

    * The judge is clearly a much bigger fan of Faulkner than I am. I tried reading The Sound and the Fury in high school and haven’t been back since.

    Faulkner’s dead, of course, but his copyrights live on, owned now by Faulkner Literary Rights, LLC (though how it came to own Faulkner’s intellectual property is not terribly Read More»

  4. 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»

  5. Copyright Holders Eat ReDigi’s Cake and Have it, Too

    But is the Cake a Lie?

    As many of you know, the trial court in Capitol Records v. ReDigi ruled over the weekend that ReDigi’s business model of re-selling digital music files infringed the copyright. Here’s the opinion. I’ve written about ReDigi quite a lot because (1) ReDigi’s business model poses lots of unresolved legal problems and (2) I had to create a new set of posts once I (along with the rights holders) learned how ReDigi really worked. My previous ReDigi posts are collected here. I only have time for a quick post before I have to go somewhere*, so here’s my quick analysis.

    * I’ll be moderating a panel on gTLDs at the ABA Intellectual Property Meeting in Crystal City. You should totally come, if you can, because my panelists are awesome and the topic is timely, important and fascinating, which will more than make up for my bumbling attempts to ask incisive questions.


    I couldn’t find a free image of a Portal Cake, but this cake looks pretty good.

    Background: Is ReDigi’s Cake Just Mostly Frosting?

    Here’s how ReDigi works, in a very tiny nutshell. You sign up. You upload songs you want … Read More»

  6. 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»

  7. Rick’s Copyright Final Exam: The Final Part

    Part III, No. 2: Larry Gardner & the Missing 25% Copyright Ownership Interest

    This really is the last part of my annotated final exam that I gave to my Vanderbilt Law copyright class last term. I decided to split the long essays into two parts because of: length issues. Feel free to start at the beginning, or return to the first long-essay topic, or even jump somewhere in between.

    Anyway, here is my homage to/satire* of the Harry Potter novels, inspired partly by Rich Burlew’s Larry Gardener and the Angry Half-Orc. Only I’d never kill Harry off like that. I’ll defend books 1-3 to the end, no matter how badly mangled the Latin is, and I’ll defend the series as a whole to a lesser extent (except book 5—never book 5).

    * Very post-modern, no? It’s a parody of Harry Potter, in which the parody is, in-topic, “straight,” and there’s also (1) an in-topic “parody” (well, is it really? You decide.) and (2) an in-topic “straight” rip-off of the “straight” original, which really a parody of the real original. Between you and me, I think I’d rather watch Georgina Henderson.

    Lurking behind this fact … Read More»

  8. Rick’s Copyright Course Final Exam: Part 2 of 3

    Part II: Short Essays

    Last time, I explained my philosophy informing the way I constructed the final exam I gave to my copyright class last semester at Vanderbilt University Law School (which happens to be where I went to law school), plus Part I of said exam which consisted of 12 short answers.

    Here, now, is my annotated Part II, complete with my comments about how the essay topics should have been addressed.

    Preliminary note: The students were presented with eight short-essay topics a week before the exam period began. Of those, I chose four, and each student chose three of those to answer. That’s why the topic numbers go 1, 2, 4, 7. So, on the one hand, the students got to prepare in detail. On the other hand, there were diminishing returns in over-preparing. I chose to do this because of the three-hour time constraint. The idea is that the students would be able to address the topics in less time if they were able to prepare for specific topics. As a side-benefit, they were also forced to prepare for a wider range of topics than could actually be crammed into a three-hour exam.*

    * The idea Read More»

  9. Rick’s Copyright Course Final Exam: Part 1 of 3

    Part 1: The Important Details

    If you follow my Twitter account very much, you already know that, in early January, I was really suffering. I was grading law exams for my Copyright course that I had taught at Vanderbilt University Law School. The problem wasn’t what the students had written. Many of the exam papers I received were excellent. The suffering was largely self-inflicted. I could have written a shorter, simpler or narrower exam, and spared myself a lot of grief. Had I known how hard the grading would be, I might have quailed when I was preparing the exam.

    Exam Philosophy

    And, yet, I don’t regret how I structured the exam. It was structured to test the ability to analyze core copyright concepts (e.g., substantial similarity, originality, authorship, ownership, fair use, the exclusive rights, etc.) and the many small but important details (e.g., termination rights, duration, restoration, misuse, minor defenses, etc.), plus stuff in between (useful articles, statutory licenses, architectural works, etc.). By and large, I think it succeeded.

    One can’t cover everything, and traditionally law professors have tended not to sweat the details. But I felt I had to. In copyright law, details matter. … Read More»

  10. 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»

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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