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Category: Copyright (page 3 of 4)

“Deadpool” and IP: copyrights, character licensing rights, and comic book movie adaptations

Comic book movies are big business. It was not always this way. Even if it seems that all Hollywood movies today are merely adaptations of comic book characters. Superman and Batman were always popular characters and were the focus of relatively successful movies. This includes the Christopher Reeve Superman movies through the launch of Tim Burton’s Batman franchise in 1989. But the recent trend of superhero dominance at the box office essentially began with Bryan Singer’s X-Men in 2000.

X-Men languished in development for years, but then surprised with a massive box office haul that summer – and made a star out of Hugh Jackman in the process. It also adopted the tone of the comic books and made it safe to adapt the concepts as a movie. The success of X-Men begat the Tobey Maguire Spider-Man franchise, which begat the Christopher Nolan Dark Knight trilogy, and suddenly Warner/DC Comics’ and Marvel’s collective catalog of characters became hot property. Not all characters have been treated equally, however. Batman, for example, will always be seen as a safer bet than, say, Ghost Rider. Movies are budgeted accordingly.

Today, the average Hollywood movie budget exceeds $100 million. This includes salaries for the cast and crew, CGI costs, and in many cases… licensing rights. Yes, your favorite comic book characters are subject to both copyright and trademark protections. Like I said, it is big business.

How do these licensing and intellectual property issues affect the production of a movie for a minor character like, say, Deadpool? Let the games begin!

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Are sex toys “useful articles” under copyright law?

Copyrights are seemingly everywhere. From music to movies to television to paintings and sculptures. Copyright issues are also ever-present when it comes to internet content, books and scholastic articles. Most anything that is an original expression that is fixed in a tangible medium of expression can be covered by the scope of 17 U.S.C. § 101 et seq. (the U.S. Copyright Act).

The hurdle for copyright qualification is low, though there are exceptions, and certain things are never subject to copyright protection. For example, government works are not copyrighted pursuant to 17 U.S.C. § 105.[1] Additionally, you cannot copyright simple words or phrases – as this is instead the subject of trademark law. We have also previously discussed (in the context of Halloween costumes) the fact that you cannot acquire a copyright on what is considered a “useful article” or that which is “an object having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information” as defined by 17 U.S.C. § 101.

Which brings us to the topic du jour: what about sex toys? Are sex toys “useful articles” that are not subject to copyright protection?

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Why the NFL does not want you to say “S— B—”… and how the NFL may be wrong

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.[1]

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!)

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Is “joke theft” tantamount to copyright infringement?

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.[1] 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…

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Seek and Destroy: Metallica is antagonizing its fan base over IP rights. Again.

Metallica has always had a love-hate relationship with its fans.  Beginning with its controversial decision to film a music video for the first time for the anti-war song “One” and continuing with the shift from heavy metal thrash to more “commercial” rock songs on the Black Album, Metallica has routinely challenged the expectations of the public.

More famously, on April 13, 2000, Metallica inflamed the good nature of its fan base by suing Napster in federal court for copyright infringement, racketeering, and unlawful uses of digital devices, among other causes of action.[1] As part of this lawsuit, Metallica identified over 300,000 individual users who allegedly copied and unlawfully acquired digital copies of Metallica’s songs through the Napster peer-to-peer (P2P) file sharing service. These users were “temporarily” banned as a result of Metallica’s investigation and lawsuit.[2]  Not surprisingly, Metallica faced a severe public backlash for attacking its purported fans through lawsuits and allegations of copyright infringement. It even inspired a classic South Park episode.

Metallica is accordingly well-known to be litigious. They will strongly enforce trademark rights and all of their copyrights, when necessary. This often does not sit well with music fans that view the band as entitled and out-of touch millionaires. This leads to the most recent unfavorable public relations snafu by Metallica.

On December 30, 2015, Metallica’s lawyers sent a cease-and-desist letter to a Canadian tribute band performing under the name “Sandman.” Why did Metallica go after a tribute band? How is this different from the Napster case?

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PETA fails to throw a monkey wrench into copyright authorship

Copyright is the exclusive domain of humans. So says the U.S. District Court for the Northern District of California. Oh, and the U.S. Copyright Office, too. A recent appeal made on behalf of haplorhine primates everywhere has failed to extend the law to allow monkeys to be the authors or owners of copyrights in the United States.  How and why are we even talking about this? Because in 2011, a monkey in Indonesia took a selfie. The monkey even smiled for the camera!

The resulting images created a firestorm for copyright law when the owner of the camera began publishing the monkey’s pictures and asserting copyright claims against others.  On September 22, 2015, PETA filed suit on grounds that the camera owner and his publishing company were infringing the monkey’s copyrights. As if that lawsuit was not bizarre enough, it did set the stage for one of the more amusing Motions to Dismiss ever filed in federal court. Nevertheless on January 7, 2016, Judge Orrick granted the Motion to Dismiss and held that a monkey cannot be the owner or author of a copyright.

While the monkey, now known as “Naruto,” may not be able to enforce any copyrights, it does raise interesting legal issues to address and consider.

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The First Amendment Embraces “Disparaging” Trademarks

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.”[1]  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.[2]

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The force is strong with Star Wars intellectual property

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.

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Patents, Copyrights and Trademarks Made Simple

[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?[1]  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.[2]

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Is Your Halloween Costume an Infringement?

[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?

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