Generic Fair Use

... where pop culture meets intellectual property law

Category: Copyright (page 1 of 4)

“You Really Think You Can Fly That Thing?” On Donald Trump, Independence Day Deepfakes, and the Copyright Defenses of Parody and Satire

May 21, 2020 / / Comments Off on “You Really Think You Can Fly That Thing?” On Donald Trump, Independence Day Deepfakes, and the Copyright Defenses of Parody and Satire

On Saturday evening, May 16, 2020, Donald Trump shared a cartoonish deepfake video to his Twitter account. Trump’s 80 million followers saw an edited video of the famous speech from the 1996 movie “Independence Day,” only with the faces of the characters being edited to reflect certain individuals in politics and pop culture, namely with Trump’s face superimposed over Bill Pullman’s face (but not his voice).

While this predictably led to outrage from various corners of the internet, including from Bill Pullman himself, the most common complaint seemed to be “isn’t this copyright infringement?” The answer to this question, as always, is: well, maybe.

Trump is unlikely to have acquired permission to use this clip from Disney[1], including any right to create or share derivative works,[2] but whether or not Trump’s uses constitute copyright infringement is not an easy answer. Copyright is not absolute. There are always defenses to allegations of infringement. Trump could assert the defense of fair use, specifically the right to use the work as part of a parody – which the Supreme Court has held is a fair use of copyright.

If this use is considered a parody, legal precedent holds that Trump did not infringe any copyrights. What if Trump’s use is instead considered satire? Yes, there is a difference between “parody” and “satire” and these distinctions are significant in a copyright fair use analysis.

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Coronavirus: Copyright Law and Revisionist History on the Internet

April 5, 2020 / / Comments Off on Coronavirus: Copyright Law and Revisionist History on the Internet

The only relevant thing in the news these days is information about COVID-19, the novel coronavirus. More formally known as coronavirus disease of 2019 and the underlying virus causing it: severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). There has not been much else worthy of writing about or reading about for a couple of months now. This is for good reason. COVID-19 is deadly serious and not to be underestimated.

Someone did not get this memo to multiple talking heads on television and the internet. Truth be told, I am not here to litigate the underlying science of the coronavirus. But I am absolutely here to dunk on those who initially went out of their way to downplay the pandemic only to later engage in lazy revisionist history. There are too many to name, but one in particular caught my attention. Because this person brought the law into it; thus bringing it directly into my area of expertise.

Hello, Dr. Drew. Please take a seat while we discuss “copywrite” laws.

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Prince spooks YouTube over Copyright Infringement (again)

January 14, 2020 / / Comments Off on Prince spooks YouTube over Copyright Infringement (again)

… and your own concert video recordings on YouTube could be infringing, too

Prince has been gone for nearly four years. But his presence still looms large over copyright law. Even in death, Prince’s estate continues to keep a watchful eye over potential infringers of his musical works.[1] The latest dispute is a potentially haunting restriction of a popular feature on YouTube: people posting video clips of live performances. On January 6, 2020, the federal district court in Massachusetts determined that Prince’s estate has the sole right to distribute video clips of his live performances and that uploading certain song clips to a YouTube channel may even constitute copyright infringement.[2]

This case presents a multitude of legal issues to assess. Additionally, this ruling leaves a potential to a technology-based philosophical conundrum for future copyright cases as they intersect with YouTube style sites. I have a YouTube channel. On this channel I have posted covers of songs that I play on guitar. My videos are nothing fancy, but this recent case and others like it have determined that these videos can actually be infringing works. This article will try to address these legal landmines while exploring any possibility for copyright law as it exists today to be reconciled with how these personal camera-phone videos are treated by the law.

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Seeing “Red”: Taylor Swift and the Dueling Copyrights in a Song

November 18, 2019 / / Comments Off on Seeing “Red”: Taylor Swift and the Dueling Copyrights in a Song

Taylor Swift is one of the most prominent and successful musical artists of this decade. She has registered over 100 song copyrights with the U.S. Copyright Office.[1] Of course, Swift was a teenager when she first entered the music industry. The stories of exploitation within the industry by record companies, managers, agents and representatives are vast. It appears not even Taylor Swift was immune from a rather nasty dispute with the entity that produced her first six albums.

Over the weekend, Swift sent out a tweet to her 85 million Twitter followers.

While I am very familiar with who Taylor Swift is (though I prefer Tool), there are enough stories about her ongoing dispute with Scooter Braun, Scott Borschetta and Big Machine Records. I will let someone else explain the gossipy details involved there. Nor will I perform any deep dives into the private equity acquisition of Ms. Swift’s former record company that led us to these contractual impasses. Elizabeth Warren and AOC have already dipped their toes into that murky water.

Instead, I immediately realized this topic has copyright law implications. Did you know that most recorded songs have at least two separate copyrights associated with them? That is partially why there is such drama between Taylor Swift and Big Machine’s new owners. Ms. Swift, for one, very much does not welcome these new corporate overlords.

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Eye of the Beholder: The differences between “trademark infringement” and “copyright infringement”

July 31, 2019 / / Comments Off on Eye of the Beholder: The differences between “trademark infringement” and “copyright infringement”

July 31, 2019

The music industry has been in the news a lot recently regarding intellectual property rights and related disputes. Just this week, a federal jury determined that Katy Perry was liable for copyright infringement. This tracks with the ongoing trademark infringement lawsuit filed by Gibson Brands, Inc., which continues to fascinate me.

Though in my research of these various topics and the feedback I have received from writing about these legal issues, I have learned that the terms “trademark” and “copyright” are being used interchangeably by the public. This is troubling because they are absolutely not the same thing.[1] I would therefore like to take the opportunity to explain the differences in these two legal doctrines. Because not all “infringements” are identical acts.

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Clawing Back Copyrights?

June 4, 2019 / / Comments Off on Clawing Back Copyrights?

Kawhi Leonard sues Nike over the copyright to a logo

June 4, 2019

On June 3, 2019, Kawhi Leonard, a professional basketball player currently with the Toronto Raptors, sued Nike over the rights to a logo.[1] Leonard contends he personally created the logo and owns the copyright to it, but that in 2017, without his knowledge or consent, Nike filed an application to register the copyright to this logo.[2] From October 2011 through September 30, 2018, Leonard was a sponsored athlete under the Nike® brand. According to the lawsuit, he signed a standard “Men’s Pro Basketball Contract” with Nike to be a sponsored athlete. Throughout the duration of this relationship, Leonard endorsed Nike products and Nike used Kawhi’s name and image to promote its products.

This is why the purported rights to the “Leonard Logo” are relevant.

Leonard’s lawsuit seeks to resolve who owns the copyright and possible trademark rights in a logo he claims to have designed himself. The interesting twist is that even if Kawhi created the logo by himself – that fact alone does not resolve the dispute.

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The Added Burden of Artistry: Copyright Registration as a necessary pre-requisite

May 8, 2019 / / Comments Off on The Added Burden of Artistry: Copyright Registration as a necessary pre-requisite

Copyright law is an interesting subsection of the legal field. Fun fact: the Founding Fathers cared more about protecting copyrights than any nebulous free speech rights. The right to copyright is established in the original U.S. Constitution enacted in September 1787. The Bill of Rights did not exist until 1789.

Additionally, one of the really cool quirks about copyrights is how they are created. Copyright exists “the moment it is created and fixed in a tangible form.” Alas, this cool quirk appears to only be true in form, but not in substance. For the United States Supreme Court recently ruled that before you can enforce a copyright, you must first go through the complete administrative process of registering that copyright with the Copyright Office.

While the Court recognized that it is not an ideal situation, it effectively threw its hands up and said “the law is the law” without really addressing the downstream effects. I would now like to take the time to do what the Court would not, and address the direct effects of this new “registration is required” copyright world.

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Put Your Name On It! President Trump and IP Ownership

April 5, 2019 / / Comments Off on Put Your Name On It! President Trump and IP Ownership

What does President Trump own?

April 5, 2019

If there is one singular, defining character trait of Donald J. Trump, it is this: he really, really likes putting the TRUMP name on things. Hotels, casinos, residential towers, television shows, books, golf courses, beauty pageants, steaks, universities, business plans, and on and on. It is kind of his thing. And he is exceptionally good at marketing the Trump name when he uses it.

The moment Donald Trump ran for president, and was subsequently elected – the ways he could use market that TRUMP brand grew exponentially. And I do not use the term “brand” lightly. Because for someone like me, the underlying question is this: what IP rights in his name and likeness does Donald Trump still own? Most recently, Trump has put the TRUMP brand on images of the White House. These images are now subsequently being sold online and at his various hotels.

I have written about some of these issues before,[1] and once again, I will not try to address any issues with the emoluments clause of the Constitution. Nor will this article be about the purported morality of such things, but instead an analysis of what IP rights are available for protection. Can President Trump own copyrights of his image? Can President Trump use the TRUMP name as a trademark and protect it like a private citizen? Can President Trump use White House and U.S. government imagery in tandem with his name and assert personal rights in these products? It is not such an easy answer.

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Pay to Play: Nirvana sues Marc Jacobs over clothing line

January 2, 2019 / / Comments Off on Pay to Play: Nirvana sues Marc Jacobs over clothing line

January 2, 2019

On Friday, December 28, 2018, Nirvana, LLC[1] sued Marc Jacobs International, Saks Fifth Avenue, and Nieman Marcus for copyright infringement, trademark infringement, unfair competition, and false designation of origin under the Lanham Act.[2] The crux of the dispute is over a new line of clothing being introduced by Marc Jacobs dubbed “Bootleg Redux Grunge” that he intends to sell to the public at Saks Fifth Avenue and Nieman Marcus stores. In short, these “grunge” clothes are being marketed to a high-end socioeconomic demographic that is antithetical to everything Kurt Cobain and Nirvana stood for. Because of course they are.

The real dispute is over the appropriation of the iconic Nirvana “smiley face” logo and what Nirvana contends is a derivative, non-transformative use by Marc Jacobs. I will not go too in-depth on the specific claims other than to say: yes, this is an infringement and Marc Jacobs is most certainly trying to associate this clothing line with famous Nirvana trademarks and copyrighted works. It is shameless. Everyone involved should be embarrassed. Yes, including Nirvana’s own lawyers – for reasons I will address.

Of course, I am biased. Nirvana is my favorite musical group of all-time and hearing “Smells Like Teen Spirit” for the first time when I was 14 years old was nothing short of a life-changing experience. Like millions of others, I also own one of the famous “smiley face” t-shirts and other merchandise bearing that image. This is a blog about trademark and copyright law, meanwhile – so let us break down the claims made against Marc Jacobs.

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An “Unusual” Publicity Rights Claim

December 19, 2018 / / Comments Off on An “Unusual” Publicity Rights Claim

Alfonso Ribeiro sues video game makers over the “Carlton Dance”

December 19, 2018

On Monday, December 17, 2018, Alfonso Ribeiro, an actor best known for roles on “Silver Spoons” and “The Fresh Prince of Bel-Air,” filed two separate lawsuits regarding copyright and publicity rights associated with what is colloquially known as the “Carlton Dance.”[1] Ribeiro sued the makers of the popular Fortnite and NBA2K games for their allegedly unauthorized uses of this dance choreography. His causes of action are based on copyright infringement, violation of publicity rights (California state law), and state and federal unfair competition claims.

The lawsuit(s) begin by asserting that Ribeiro is “an internationally famous Hollywood star, known for his starring role as Carlton Banks from the hit television series The Fresh Prince of Bel-Air and as host of America’s Funniest Home Videos. Ribeiro created his highly recognizable “Dance,” that has also been referred to by the public as “The Carlton Dance,” which exploded in popularity and became highly recognizable as Ribeiro’s signature dance internationally. The Dance is now inextricably linked to Ribeiro and has continued to be a part of his celebrity persona.” The lawsuits later allege that “The Dance has become synonymous with Ribeiro.” In short, these assertions are wildly debatable. Given the national attention this case has received, I would like to look at some of the legal issues raised by these lawsuits and address the possible and likely defenses to Ribeiro’s claims and contentions.

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