The Mysteries of Copyright Ownership
If there were a goldmine in your town—one that produced a worthwhile amount of gold every year and wouldn’t run out for many, many years—you’d probably expect any dispute about who owns it to have long since been resolved. It’s true that the folks you sell you real estate might not actually own it, which is why you buy “title insurance,” but real estate transactions are pretty well-recorded, so such awful surprises are pretty rare, which is why anyone would dare to offer “title insurance.” At a minimum, you wouldn’t expect two different people to be mining the gold without, you know, their coming to blows.
But this sort of thing happens with copyrights and royalty streams with surprising frequency. It can be very difficult to tell how owns a copyright. Copyrights can be sold just like real or personal property can, but you don’t need to record the sale anywhere.* True, transfers of copyright have to be in writing, but many industries that deal with copyright—I’m looking right at you, music industry—suck at keeping records.
Jamaica, where, apparently, they didn’t do paperwork in the 1960′s.
Copyright ownership vests initially in the author, or maybe … Read More»
Did the Ninth Circuit Contradict Itself?
A few days ago, we got two opinions handed down by the same court, written by the same judge, on essentially the same subject, involving the same defendant that reach seemingly contradictory results. On July 31, the Ninth Circuit handed down two decisions about the use of likenesses in video games: Brown v. Electronic Arts, which went defendant’s way, and Keller v. Electronic Arts, which went the plaintiffs’ way.
In both cases, football players sued video-game maker EA for using their likenesses in EA’s football video games. Jim Brown, perhaps the greatest football player ever*, objected to the use of his likeness in EA’s Madden NFL**. In Keller, several former college football players, none of whom will ever be considered one of the greatest of all time, objected to the use of their likenesses in EA’s NCAA Football.
* Before even my time, though.
** EA licenses with the NFL and NFL Players Association for the rights to use players’ likenesses, but Brown has been far too long retired to be covered by those licenses.
These guys might be suing next, when EA comes out with Old-Timey College Football.… Read More»
Divided Third Circuit Reverses in EA v. Hart
Way back in September 2011, I blogged about Hart v. EA, mostly as an introduction to publicity rights. Hart was a former NCAA quarterback (and former teammate of Ray Rice at Rutgers) whose image (like many other former NCAA players’) is used in EA’s NCAA Football. The NCAA (whose reputation has not gotten any better since then) licenses collegiate athletes’ images and physical statistics to EA, but at the same time forbids collegiate athletes from profiting from their own images.* When you play NCAA Football, you can actually play a simulacrum of Hart—his image and certain physical and football statistics. If you’re a Rutgers alumnus, you might be pretty excited to play Rutgers’ powerful 2006 team (with Hart as quarterback and Rice as tailback) and relive the high-water-mark of Rutgers football.
* I’ll make no secret of my disgust at this state of affairs. Universities are able to profit mightily from young men to risk their health and long-term prospects to play a game they love. A university education is a very valuable thing, and most student-athletes get a great deal, but it’s on the backs of the … Read More»
Fake Website Selling Fake Software Doesn’t Infringe Real Trademark
I’m taking a short break from the posts about my all-important, earth-shattering article because this legal opinion is too awesome not to. Read it here (Fortres Grand v. Warner Bros.). It involves: Dark Knight Rises, “Catwoman*,” fake software, real software, viral marketing, and the First Amendment. So, yeah, I kind of have to blog about it. Now.
* Before you ask: Eartha Kitt.
In The Dark Knight Rises, an important plot point is some fictional software called “Clean Slate” that can completely remove your criminal history from every database in the world—except in places that still keep paper files, I guess. Actually, “fictional” doesn’t do it justice. Perhaps “fantastic” or “outlandish” or “magical” are better.
Don’t you hate it when your slates are not clean? Try Clean Slate brand slate cleaner.
Not terribly coincidentally, CLEAN SLATE is also the name of a software product published by the plaintiff. This product erases all record of your doings on a computer so that subsequent users can’t tell what you’ve been up to on the computer. The idea is that each user starts with a “clean slate.” The reason … Read More»
Caught Between the Heartless and the Cowardly, Does an Indie Author Stand a Chance?
Update (Feb. 8, 2013): It appears that Spots the Space Marine is available once again from Amazon’s Kindle store, as of this morning. I don’t have any details about the change, e.g., whether it’s permanent, who relented (Amazon or Games Workshop), or why. (Since this post didn’t go up until last night, we can feel confident that this post had nothing to do with it!)
Further Update (Feb. 14, 2013): It appears Amazon voluntarily put the back up. Apparently, the EFF asked Amazon to, Amazon took an actual look at the notice, gagged, reached the same conclusion outlined below, and put the book back up. The EFF’s report paints Amazon as somehow so overwhelmed with notifications that they can’t spot (as it were) an obvious stinker like this. But taking something down like this isn’t being “neutral.” It’s being a tool (in the old sense of the word). EFF is correct, however, to identify providers like Amazon as the “weak link” in the chain of free speech.
September 19, 2012 by Rick Sanders | Category: Blawg, Blog | Tags: copyright, digital content, DMCA, economic theory, fair use, free speech, Google, internet, market dynamics, safe-harbor, secondary liability
Heh, He Said “Dicta”
Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.
So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:
Are Wieners Copyrightable?
1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.
* Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them … Read More»
But it’s Sad, Sad News for Momma Partridge
Even when I was a little kid, I didn’t like the Partridge Family. It came on late in the afternoon (in syndication, of course), after some Looney Tunes-type cartoons. It always seemed to start promisingly, with a little cartoon—featuring cute partridges hatching—and catchy song* for the opening credits. Then it went immediately downhill after that, mostly because it wasn’t a cartoon. Also, I was envious that the littlest kids got to live such a cool life that didn’t involve going to school. And I positively hated Danny.** Honestly, I preferred the Brady Bunch, if I had to endure a live-action sit-com, which is settling a low, low bar.
* Whoa, I just listened to the song again. I should rephrase that. It was catchy for a six-year-old kid in 1974, I guess.
** Yeah, I get that Susan Dey was pretty. But c’mon I was six. Also, at that point in her acting career (she was previously a model), she really couldn’t act.
Dissecting a Remarkable Ruling
* The blog title is a reference to this Order of the Stick comic. (It’s safe for work, so long as you don’t read it out loud.)
Last time we surveyed the forces that lead to this recent extraordinary magistrate’s opinion. It was handed down May 1, but already it’s become notorious for its almost gleeful taking down of the four porn-industry rights-holding plaintiffs. The key is to read the snerk-inducing footnotes. Highlights include these gems:
Footnote 7, in which the concept of “moral high ground” is discussed:
Plaintiff K-Beech’s rambling motion papers often lapse into the farcical. In its papers, counsel for K-Beech equate its difficulties with alleged piracy of its adult films with those faced by the producers of the Harry Potter books, Beatles songs and Microsoft software, and compare its efforts to collect from alleged infringers of its rights to the efforts of the FBI to combat child pornography. In an ironic turn, the purveyors of such works as Gang Bang Virgins, explain how its efforts in this matter will help empower parents to prevent minors from watching “movies that are not age appropriate” by ensuring that viewers must
Rick will be presenting at The Internet & the Law 2011, which takes place all day Friday, December 30, at the Nashville School of Law. The tuition is $280, and it’s good for 5 hours of General CLE credit, plus 1 hour of Dual CLE credit. Rick will be presenting on two topics: (1) “Internet 101″: Defining the Internet and its Legal Environment; and (2) Constitutional Issues Arising out of the Internet. Rick hopes to see you there!
A Judge May Have Found a Better Way
Courts have been struggling for several years now with how treat online anonymous speech when faced with requests to unmask the identities of the anonymous speakers. I outlined the issues previously in these two blog posts, but the problem amounts to:
- Balancing the right to speak anonymously (an aspect of the First-Amendment right of free speech) against the right to seek and obtain redress against wrongdoers.
- The sneaking suspicion that anonymous speaker is just trying to duck answering for their wrongdoing.
- The sneaking suspicion that the supposedly aggrieved party is really just trying to unmask and embarrass the anonymous speaker.
It’s not just that courts have come up with a bewildering variety of tests to balance the competing rights, it’s the breadth of attitudes that courts have displayed on this issue. Some courts really privilege the right to speak anonymously. Others don’t seem to give a toss.
Another problem is that these tests are supposed to be straightforward and easy to apply–“bright-line” rules–but in practice, they usually don’t survive their application to the next set of facts. Thus, although they’re meant to be applied broadly, they tend to be limited to … Read More»