On Sunday, February 7, 2016, the Carolina Panthers® and Denver Broncos® will take the field for the kickoff of Super Bowl® 50. This is the annual showcase game for the National Football League®. In the interim time, the NFL® has assembled an army of lawyers that are ready, willing and able to send a bevy of cease-and-desist letters to any individual or entity that has the audacity to use certain terms or phrases that the league perceives might dilute or infringe famous trademarks that belong to the NFL.
The Super Bowl is practically an American institution, now in its fiftieth year. Many groups contend that the Monday after the Super Bowl should be a national holiday. In fact, a formal petition was once initiated for that very purpose. As a result, you will see and hear numerous advertisements leading up to the Super Bowl promoting numerous goods and services. It is kind of a big deal. What you are unlikely to hear in these advertisements, however, is quite noteworthy. You will rarely hear any advertisement use the term SUPER BOWL.
Why are we reduced to using nebulous terms like “The Big Game” or “The Pro Football Championship” to identify and describe a game? Why is the NFL so trigger-happy in seeking to stop all uses of “Super Bowl” that are not made by direct sponsors of the league or the television broadcast? What is the legal basis for the NFL’s position on this matter? Is it possible that the NFL is wrong? (Spoiler alert: YES!)
In what seems to be a rite of passage for up-and-coming comedians, Golden Globe® nominee Amy Schumer was recently accused of “joke theft” by a series of fellow comedians. All puns aside, “joke theft” can be a serious matter and allegations of the same have negatively affected the careers of many comedians, including Denis Leary, Carlos Mencia, and Dane Cook. While few jokes are truly original anymore, the blatant lifting of an entire comedic performance from another often subjects the alleged thief to public shaming. In the case of a comedian with the status of Amy Schumer, that shaming can be high-profile. Many have already taken to YouTube to create comparison videos.
But is joke theft a stand-alone basis for a legal claim of copyright infringement?
Yes, yes it can be. Please allow me to explain…
On December 22, 2015, The United States Court of Appeals for the Federal Circuit reversed decades of legal precedent and held that the United States Patent and Trademark Office cannot refuse to grant federal registrations for trademarks on the basis of the mark being “disparaging.” This standard of refusing registrations for “disparaging” marks is derived from Section 2(a) of the Lanham Act, the federal statute that governs U.S. trademark law.
Star Wars: The Force Awakens opens on December 18, 2015. It will be the biggest movie of the year. It will also likely be the most infringed copyrighted work of the year (and 2016, too). It will be the seventh official full-length Star Wars movie to be released in theaters since 1977. Though I recently re-watched the prequels and I would prefer to act as if they did not exist. No matter what revisionist history might try to argue.
Since the original movie, Star Wars Episode IV: A New Hope, George Lucas has not been shy about protecting his intellectual property rights. It is practically a running joke that any reference to Star Wars will expose you to a lawsuit from Lucasfilm or Disney. (The Walt Disney Company bought Lucasfilm for $4,000,000,000 in October 2012 and immediately announced plans for a new set of Star Wars movies using the same characters and settings.)
To demonstrate just how sincere the creator of the Star Wars universe is about protecting his creation, his characters, the movies, the settings, the concepts and the ancillary names, brands and logos – the following is a summary of the notable issues relating to Star Wars intellectual property.
[originally published November 5, 2015 at www.law-dlc.com]
Did you know that the Framers of the United States Constitution solidified the rights to copyrights and patents more than two years before the protection of freedom of speech? It is true. The Constitution, signed on September 17, 1787, included the following specific provision:
Congress shall have the power to … promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
[originally published on October 28, 2015 at www.law-dlc.com]
Halloween is on a Saturday this year. I am anxious to see people of all ages walking around in full costume. What a wonderful time of year. Halloween is fun – and it brings out the creative side in almost everyone. People will be dressed as superheroes, villains, cartoon characters, pop culture icons, scary monsters, and more. But most of these costumes you will see represent characters that were created by someone else.
Is your Halloween costume infringing someone else’s intellectual property rights?
[originally published on October 21, 2015 at www.law-dlc.com]
In August, Ryan Adams announced his intentions to release song-by-song and nearly note-for-note cover of Taylor Swift’s “1989” album. He covered every single song and all of the same lyrics, just stripped down and re-recorded as a more guitar-based interpretation. It is a rather audacious project for an artist that is more of an indie musician than a pop star. After the release of his covers album, many people asked me that all-too-common question:
How is that legal? How is that not copyright infringement?
[originally published on October 13, 2015 at www.law-dlc.com]
As a sports fan, Monday, October 12, 2015 was a strange and turbulent day. USC fired Steve Sarkisian one day after asking him to take an administrative leave of absence (cue the employment lawyers). Steve Spurrier, the head coach of the other USC – South Carolina – suddenly walked away and called it a career in mid-season. Meanwhile, Texas Governor Greg Abbott congratulated the Astros on making the American League Championship Series when they were leading 6-2 in the eighth inning, only for the Royals to score five quick runs and turn me into a blubbering mess of a baseball fan. Someone in the governor’s office forgot about Yogi Berra and “it ain’t over ‘til it’s over.”
Yet the craziest sports story of the entire day might be something that happened over social media. In the mid-afternoon, the Twitter accounts for Deadspin (@Deadspin) and SB Nation’s GIF-based sub account (@SBNationGIF) were suddenly suspended. The initial reasons were murky, with media reports later suggesting that the National Football League used its influence with Twitter to suspend the accounts. And why? Because the Deadspin account and the SBNationGIF account both routinely posted or re-tweeted Vines and GIFs of highlight plays from NFL games. Which are copyrighted works.