Generic Fair Use

... where pop culture meets intellectual property law

Category: Copyright (page 1 of 3)

No Skipping Steps? The Burdens of Artistry

SCOTUS to hear case on copyright registration requirements

July 10, 2018

Copyright law is quirky. On one hand, you have a copyright the instant you fix your work in a tangible medium of expression.[1] You do not need to do anything else. Copyright protection attaches right away. Yet to actually enforce that copyright against potential infringement requires that the copyright owner take steps to register the copyrighted work with the Copyright Office.[2] That is right – a prerequisite to any lawsuit is registration. This is an added step which requires lawyers and application filing fees. The legal system always seems to be set up to make sure it gets paid first. Funny how that works.

Some states and circuits, however, have operated under a “if the application to register is on file; that is good enough” policy. The Fifth Circuit, which includes Texas, is an example of this policy.[3] Strictly speaking, the Fifth Circuit “requires only that the Copyright Office actually receive the application, deposit, and fee before a plaintiff files an infringement action.”[4] For now.

Why is this important? Well, on June 28, 2018, the United States Supreme Court granted certiorari in the case Fourth Estate Public Benefit Corp. v. Wall-Street.com, to resolve this perceived “split” amongst the circuit courts for what is required to file a copyright infringement lawsuit in the United States. This issue will be heard by SCOTUS during the next term. The result will likely impact the strategies of copyright lawyers, including me.

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Something in the Way: Online Guitar Tabs and Copyright Law

Americans buy millions of new guitars every year.[1] Many of these are “entry-level” guitars intended for those trying to learn a new instrument. Yet somewhere in the range of 90% of new guitar players quit trying within the first year. When the electric guitar first became popular in the 1950s and 1960s, there were few ways to accelerate the learning curve. By the late 1990s, along with the advent of the internet, a tool for learning guitar and how to play popular songs reached the masses: guitar tablature or “tab” for short. The concept of tablature was not new, but the ability for an individual to read and acquire tabs through the internet was groundbreaking.

Guitar tab is essentially a shorthand method for transcribing the specific notes and chords of a song in a format that mimics the finger positions on a guitar’s fretboard. Instead of having to learn to read and translate formal sheet music, tablature is simplified. Each note is represented by a number that corresponds to a particular string and location on the fretboard. The beauty of guitar tab is that most anyone who plays guitar can transcribe a song into this format and share it with others as a teaching tool.

Naturally, it did not take long for the internet to respond in kind. Sites with collections of thousands of tabs populated the web seemingly overnight. To the surprise of no one, this also caught the attention of the music publishing industry. And their lawyers. Copyright law concerns threatened to shut down online guitar tab publishing in its entirety.

My question today is simple: while guitar tablature is likely a “derivative work” restricted by copyright law – should it be? Or should there be some sort of expressed fair use exception for guitar tablature? And if not, why not?

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On Copyright Limits: MLK, Mickey Mouse, and Sonny Bono

Today marks the 50th anniversary of the assassination of Martin Luther King, Jr. The most famous individual from the American civil rights movement left behind a impactful, while often misunderstood legacy, which still resonates across the world today. From an IP perspective, he also left behind a sizable amount of popular copyrighted works. Yes, the “I Have a Dream” speech is still protected by U.S. Copyright law today.

You still need to acquire permission from the King estate to use his works, including his speeches. While the estate has made some questionable decisions about who to license these works to, the fact remains that the estate maintains control over his name, his likeness, and his copyrighted works today.

But did you know that if not for Mickey Mouse and Sonny Bono, that the MLK estate would be losing the rights to these copyrighted works to the public domain this year? It’s true.

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The Super Bowl of Unauthorized Celebrity Exploitation

Last night, the Philadelphia Eagles defeated the New England Patriots to win Super Bowl LII®. By this point, the Super Bowl is more than just a football game. It is a literal spectacle, above and beyond the athletic competition itself. Not only do viewers get exposed to the glitz and glamour of the biggest game of the season, but there is also an extra-long halftime special. Not to mention the heavily-discussed commercials. Often, marketing firms will hire celebrities to appear in these commercials to add a little extra pizzazz. Of course, these celebrities usually agree to appear in these advertisements beforehand, with full knowledge that their likeness is being used for commercial gain. This year’s Super Bowl went a step further.

Prince, Martin Luther King, Jr., and Kurt Cobain are some of the most iconic individuals in American history and pop culture. They were also fiercely protective of how their names and images were used when they were alive. Today, their respective estates or other third-parties control how their “publicity rights” and how their likenesses are marketed. Yet somehow each of these three were all featured in different ways during the Super Bowl telecast, often in direct contrast to how they would have presented themselves during their lifetimes. How is this legal? I will try to address this interesting cross-section of trademark, copyright, and publicity right issues here.

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Those *were* the droids I was looking for! Star Wars and its universe of IP rights

On May 25, 1977, George Lucas unleashed Star Wars: A New Hope into the cinematic consciousness. A movie that cost $11 million to make generated nearly $800 million in worldwide box office receipts. Even at the time, it would have been hard to predict the scope of Star Wars in popular culture forty years later. In October 2012, Disney bought Lucasfilm – and the rights to all things Star Wars – for $4 billion.

Not even Peter Minuit got as good of a deal for his 60 guilders when he acquired Manhattan.

It may not be an understatement to claim that the Star Wars property is collectively the most valuable intellectual property asset in modern history. I am not the first to assert this. Consider the ever-expanding scope of characters, stories, movies, books, toys, multimedia, and all the related technology that can be associated with Star Wars. With Star Wars Episode VIII: The Last Jedi opening on December 15, 2017, a deeper dive into the scope of Star Wars and its intellectual property universe seems timely and appropriate.

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“Trademark” is not a verb

As a practicing attorney, with a specialization in intellectual property law, I am often asked to assist clients and potential clients with their various trademark needs. Among the more common questions or requests that are posed to me are the following:

“I need to trademark XYZ!”
“My competition is using ABC, but they did not trademark it, so can I use it?”
(and more recently)
“I hear the Supreme Court says you can now trademark offensive terms, is that true?”

While well-intentioned, each of these questions is either grammatically or factually incorrect. Why? Because, quite simply, “trademark” is not a verb and should never be used as a verb in a legal context. “Trademark” is a noun that identifies a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. It is not a process or an action or a series of steps to be accomplished. The word is not a verb. Unfortunately, modern colloquial uses of the term have seeped into the common dialogue. This causes mistakes, unnecessary confusion, and potentially drastic mis-applications of the law by those who are otherwise acting in good faith.

Here’s how and why.

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President Donald Trump and Intellectual Property: what can he claim as his?

April 20, 2017

In a world of fake news, clickbait, and alternative facts, there is a bit of comfort in knowing at least one undeniable fact. Donald J. Trump is enthusiastic about stamping the TRUMP name on most any goods or services and reaping the benefits of the ancillary trademark rights. He first sought trademark registration for a Trump-branded product in 1985 and has since sought to register in excess of 300 other trademarks with the United States Patent and Trademark Office, including the now ubiquitous MAKE AMERICA GREAT AGAIN® mark, which was registered on August 16, 2016.[1] While he often files applications through his various corporate entities, the fact remains: Donald Trump loves him some trademark rights.

This may elicit a few questions though. First, can a sitting POTUS own trademark rights? Also, what about other intellectual property rights: patents, copyrights, trade secrets? Can a U.S. President acquire, assert, enforce, or use with impunity certain types of intellectual property?

I shall do my best to answer these, though I will try to avoid addressing in detail the emoluments clause elephant in the room. For now.

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How do I avoid copyright infringement as a songwriter?

It has long been a running joke that if you only know how to play the G, C and D chords on a guitar, then you already know how to play hundreds of different popular songs. Many musical acts have been ridiculed for only playing the same three chords over and over. “Three-chord” rock music is practically its own genre. The I-IV-V major key chord progression is even considered the “standard” blues progression. Within that construct, there are only 12 basic “notes” or tones in the musical spectrum: A, Bb, B, C, C#, D, Eb, E, F, F#, G, and G#. From there it is just a matter of octaves to achieve different ranges of an “A” note. In short, there is a finite amount of discrete notes along with a relatively limited amount of chord progressions that are available to a songwriter.

Copyright law, meanwhile, only protects “original works of authorship” in musical works and sound recordings.[1] It is right there in the statute: the song or sound recording must be original. Without the element of originality, there is nothing protectable under the law.

Knowing this, and with hundreds of years of the history of songwriting, are there any songs that are truly “original” anymore? Is there any progression or riff that is so unique as to stand apart from every song that has been previously written? If not, how are musical works still subject to claims of copyright infringement and why should we care?

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Hey, Stop Using My Song For Your Campaign!

Can musicians and artists legally demand that politicians not use their works?

Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.[1]

Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:

Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
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Stairway to Infringement? Led Zeppelin facing copyright claims

On May 31, 2014, the estate of Randy Craig Wolfe filed a lawsuit in the Eastern District of Pennsylvania against James Patrick Page, Robert Anthony Plant, and John Paul Jones, among others.[1] The primary cause of action is copyright infringement. There does not appear to be anything special about such a lawsuit until you realize that the Defendants are famous musicians that performed under the name “Led Zeppelin” and the “among others” includes Warner Music Group. The alleged basis for copyright infringement? Stairway to Heaven. Yes, the 1971 song that continues to be a staple at every middle school dance. Suddenly this lawsuit seems like kind of a big deal.

How is such an iconic song subject to a copyright infringement lawsuit 45 years after its initial release? How was this suit not dismissed as frivolous right away? Does the judge not know about this little thing called a ‘statute of limitations’? This all seems highly unfair, right?

Well, a jury gets to decide all of these issues as early as next month. On April 8, 2016, the district court judge denied the relevant parts of Led Zeppelin’s Motion for Summary Judgment and the lawsuit is set to proceed to trial.[2] In the meantime, a quick overview of this case and how 1970s copyright laws are still relevant today.

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