On May 29, 2020, Netflix released a new comedy television series starring Steve Carrell titled “Space Force.” It is a workplace comedy from one of the creators of “The Office” that focuses on the presumed sixth branch of the United States military. This concept is directly derived from the United States’ Space Force that was announced by President Trump and authorized by Congress on December 20, 2019.
By any standard, the existence of both things is somewhat of
a farce. Making things even stranger is that no one seems to understand how
names and titles and trademarks work, which led to a series of articles this
week about the purported trademark rights to SPACE FORCE being lost by the
United States government. This premise is ridiculous and this article will
attempt to explain why this is a non-story.
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,
Trump is unlikely to have acquired permission to use this
clip from Disney,
including any right to create or share derivative works, 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.
As of this morning, there are seven (7) pending applications
with the United States Patent and Trademark Office (USPTO) to register some
variation of OK BOOMER as a trademark.
Thanks in part to the New York Times
article in October, the casually dismissive phrase “ok, boomer” went from a
limited internet audience to a mocking cultural term du jour. Inspired would-be entrepreneurs rushed to file
applications with the USPTO to “own” this phrase as a trademark.
It is unlikely any of these applications will mature into a
trademark registration. Simply put, this is not how trademarks work. Following in
the footsteps of such whimsical terms like COVFEFE, TACO
TUESDAY, and ALTERNATIVE FACTS, most of these alleged marks will fail to
acquire a registration from the USPTO.
Because they almost certainly fail to function as trademarks.
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. I
would therefore like to take the opportunity to explain the differences in
these two legal doctrines. Because not all “infringements” are identical acts.
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.
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.
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.
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.