1. Bald Attempt to Use Trademark Law to Silence Criticism Is Defeated

    It’s Outrage Week!

    I know this is hard on the heels of my take on an outrageous attempt to leverage a dicey trademark registration into some settlement money, but at least there, you could admire the guy’s chutzpah. What I want to talk about today is willfully ignorant bullying—by government officials.

    What is it, exactly, about small-time politicians and their complete inability to handle criticism? (WARNING: the second link was manufactured on machinery that also manufactures satire.)

    Defending the Honor of the Murderous Seal

    Anyway, Union County, New Jersey, like other counties in the United States, has a nice little seal. Here it is.

    CountyOfUnionSeal

    Isn’t it precious? I like the colonial-era house and—wait—what’s that? I think that’s a redcoat shooting at someone? That’s not nice. Well, I’m sure there’s an interesting story behind it. Indeed, there is. It depicts the killing of Hannah Caldwell during the Revolutionary War at the hands of a British soldier. At the time, New Jerseyans were wavering about which side to support, and the news of her murder tipped the scales in favor of the Revolution. One suspects a bit of propaganda was involved, but so it goes.

    A political activist, Tina Renna, … Read More»

  2. I Like Pi: Trademark Registrations for Fun and Profit

    SPACE MARINES Repeated as Farce

    Remember the SPACE MARINES bogus “trademark” DMCA takedown notice? In that case, a markholder succeeded in temporarily blowing one by a sophisticated technology provider, Amazon. This time, with the Zazzle-π issue, we have a much more cynical version.

    Zazzle is a successful print-on-demand online store. Designers upload their designs to Zazzle, and Zazzle makes them available to the general public, splitting the profit with the designer. Among other things, you can order T-shirts with a wide variety of designs on them. And because nerds are like that, there are a lot of T-shirts with some variant of pi (π) on them. I don’t know if you can rich doing this, but designers must make some money from this system, and buyers get to express their mathematical and/or punning nerdiness.

    Zazzle then received a rather confusing demand letter from Ronald Millet, Esq.. It’s confusing because he starts of demanding that Zazzle “CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT” (capitalization and bold in original) but then goes on to talk about his client’s amazing trademark registration.* The letter isn’t very specific, saying only that his client has noticed Zazzle’s use of “the mathematical … Read More»

  3. Who Owns the Goldmine? Bob Marley’s Missing Copyright

    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 who 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 who 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.

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    Jamaica, where, apparently, they didn’t do paperwork in the 1960′s.

    Copyright ownership vests initially in the author, or maybe … Read More»

  4. Descent into Madness: Publicity Rights and Free Speech

    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.

    6627675917_6c68f16304_o

    These guys might be suing next, when EA comes out with Old-Timey College Football.Read More»

  5. Transform my Hart: Publicity Rights in Expressive Material

    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»

  6. In Dark Knight Rises Trademark Case, Judge Works from Clean Slate

    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.

    3333358117_14e0ea6809_o

    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»

  7. Space Amazons, Space Marines and the Non-Existant Trademark Takedown Notification

    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.

    Further Update Cont’d: For its part, Games Workshop claimed that it “had no choice” but to cause Read More»

  8. I Has Moar Flava: Nine Copyright Observations About the myVidster Case

    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»

  9. Come on Get Happy! Publicity Rights in the Online Context

    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.

    I bring this all up because the actress who played Momma Partridge, Shirley Jones, recently lost an appeal on a claim that her likeness was … Read More»

  10. Come on Get Happy! Publicity Rights in the Online Context

    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.

    I bring this all up because the actress who played Momma Partridge, Shirley Jones, recently lost an appeal on a claim that her likeness was … 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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