Generic Fair Use

... where pop culture meets intellectual property law

Category: Movies

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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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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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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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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“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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