Generic Fair Use

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Category: Publicity Rights (page 1 of 3)

“You Really Think You Can Fly That Thing?” On Donald Trump, Independence Day Deepfakes, and the Copyright Defenses of Parody and Satire

May 21, 2020 / / Comments Off on “You Really Think You Can Fly That Thing?” On Donald Trump, Independence Day Deepfakes, and the Copyright Defenses of Parody and Satire

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, maybe.

Trump is unlikely to have acquired permission to use this clip from Disney[1], including any right to create or share derivative works,[2] 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.

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Coronavirus: Copyright Law and Revisionist History on the Internet

April 5, 2020 / / Comments Off on Coronavirus: Copyright Law and Revisionist History on the Internet

The only relevant thing in the news these days is information about COVID-19, the novel coronavirus. More formally known as coronavirus disease of 2019 and the underlying virus causing it: severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). There has not been much else worthy of writing about or reading about for a couple of months now. This is for good reason. COVID-19 is deadly serious and not to be underestimated.

Someone did not get this memo to multiple talking heads on television and the internet. Truth be told, I am not here to litigate the underlying science of the coronavirus. But I am absolutely here to dunk on those who initially went out of their way to downplay the pandemic only to later engage in lazy revisionist history. There are too many to name, but one in particular caught my attention. Because this person brought the law into it; thus bringing it directly into my area of expertise.

Hello, Dr. Drew. Please take a seat while we discuss “copywrite” laws.

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That’s Not How Any of This Works! Cultural Phrases and the Failure to Function as a Trademark

December 4, 2019 / / 1 Comment

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.[1] 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.

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Top 10 Misconceptions about LeBron and Ohio State’s Trademark Filings

September 16, 2019 / / Comments Off on Top 10 Misconceptions about LeBron and Ohio State’s Trademark Filings

Trademark law is quirky. Look no further than the attention being given to recent filings to the USPTO by LeBron James and Ohio State University. TACO TUESDAY and THE. These legal matters are receiving substantial media coverage. But the subsequent news blurbs, articles, and media stories all seem to have one important thing in common:

Nearly everyone is wrong about what is going on here.

At this point, I expect ESPN and Darren Rovell to fail at describing the intricate proceedings of trademark matters. That much is a given. It is everyone else piling on these stories that is making me nervous. Accordingly, to address these issues, and because the internet practically runs on top 10 lists, here are 10 misconceptions about LeBron and Ohio State’s trademark filings.

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Put Your Name On It! President Trump and IP Ownership

April 5, 2019 / / Comments Off on Put Your Name On It! President Trump and IP Ownership

What does President Trump own?

April 5, 2019

If there is one singular, defining character trait of Donald J. Trump, it is this: he really, really likes putting the TRUMP name on things. Hotels, casinos, residential towers, television shows, books, golf courses, beauty pageants, steaks, universities, business plans, and on and on. It is kind of his thing. And he is exceptionally good at marketing the Trump name when he uses it.

The moment Donald Trump ran for president, and was subsequently elected – the ways he could use market that TRUMP brand grew exponentially. And I do not use the term “brand” lightly. Because for someone like me, the underlying question is this: what IP rights in his name and likeness does Donald Trump still own? Most recently, Trump has put the TRUMP brand on images of the White House. These images are now subsequently being sold online and at his various hotels.

I have written about some of these issues before,[1] and once again, I will not try to address any issues with the emoluments clause of the Constitution. Nor will this article be about the purported morality of such things, but instead an analysis of what IP rights are available for protection. Can President Trump own copyrights of his image? Can President Trump use the TRUMP name as a trademark and protect it like a private citizen? Can President Trump use White House and U.S. government imagery in tandem with his name and assert personal rights in these products? It is not such an easy answer.

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Pay to Play: Nirvana sues Marc Jacobs over clothing line

January 2, 2019 / / Comments Off on Pay to Play: Nirvana sues Marc Jacobs over clothing line

January 2, 2019

On Friday, December 28, 2018, Nirvana, LLC[1] sued Marc Jacobs International, Saks Fifth Avenue, and Nieman Marcus for copyright infringement, trademark infringement, unfair competition, and false designation of origin under the Lanham Act.[2] The crux of the dispute is over a new line of clothing being introduced by Marc Jacobs dubbed “Bootleg Redux Grunge” that he intends to sell to the public at Saks Fifth Avenue and Nieman Marcus stores. In short, these “grunge” clothes are being marketed to a high-end socioeconomic demographic that is antithetical to everything Kurt Cobain and Nirvana stood for. Because of course they are.

The real dispute is over the appropriation of the iconic Nirvana “smiley face” logo and what Nirvana contends is a derivative, non-transformative use by Marc Jacobs. I will not go too in-depth on the specific claims other than to say: yes, this is an infringement and Marc Jacobs is most certainly trying to associate this clothing line with famous Nirvana trademarks and copyrighted works. It is shameless. Everyone involved should be embarrassed. Yes, including Nirvana’s own lawyers – for reasons I will address.

Of course, I am biased. Nirvana is my favorite musical group of all-time and hearing “Smells Like Teen Spirit” for the first time when I was 14 years old was nothing short of a life-changing experience. Like millions of others, I also own one of the famous “smiley face” t-shirts and other merchandise bearing that image. This is a blog about trademark and copyright law, meanwhile – so let us break down the claims made against Marc Jacobs.

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An “Unusual” Publicity Rights Claim

December 19, 2018 / / Comments Off on An “Unusual” Publicity Rights Claim

Alfonso Ribeiro sues video game makers over the “Carlton Dance”

December 19, 2018

On Monday, December 17, 2018, Alfonso Ribeiro, an actor best known for roles on “Silver Spoons” and “The Fresh Prince of Bel-Air,” filed two separate lawsuits regarding copyright and publicity rights associated with what is colloquially known as the “Carlton Dance.”[1] Ribeiro sued the makers of the popular Fortnite and NBA2K games for their allegedly unauthorized uses of this dance choreography. His causes of action are based on copyright infringement, violation of publicity rights (California state law), and state and federal unfair competition claims.

The lawsuit(s) begin by asserting that Ribeiro is “an internationally famous Hollywood star, known for his starring role as Carlton Banks from the hit television series The Fresh Prince of Bel-Air and as host of America’s Funniest Home Videos. Ribeiro created his highly recognizable “Dance,” that has also been referred to by the public as “The Carlton Dance,” which exploded in popularity and became highly recognizable as Ribeiro’s signature dance internationally. The Dance is now inextricably linked to Ribeiro and has continued to be a part of his celebrity persona.” The lawsuits later allege that “The Dance has become synonymous with Ribeiro.” In short, these assertions are wildly debatable. Given the national attention this case has received, I would like to look at some of the legal issues raised by these lawsuits and address the possible and likely defenses to Ribeiro’s claims and contentions.

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Be Prepared… to be sued for trademark infringement

November 15, 2018 / / Comments Off on Be Prepared… to be sued for trademark infringement

The Girls Scouts sue the Boy Scouts for trademark infringement and dilution

The Boy Scouts of America was founded in 1910 and has operated under the shorthand name of the “Boy Scouts” from the outset. On May 2, 2018, however, the Boy Scouts of America announced a new name for the association: “Scouts BSA.” Lost in the cultural dispute over whether the Boy Scouts should have included girls and what this means for the Boy Scouts as an organization – a trademark battle emerged.

On November 6, 2018, the Girl Scouts of the United States of America sued the Boy Scouts of America in federal court[1] for trademark infringement, unfair competition, federal trademark dilution, and tortious interference with prospective economic advantage, along with a request to cancel or modify the registration of the SCOUTS® trademark which the Boy Scouts previously acquired from an unaffiliated university.

The moment the Boy Scouts of America adopted the SCOUTS or SCOUTS BSA marks to include girls into their ranks, this conflicted with the pre-existing and concurrent uses of the Girl Scouts’ own GIRL SCOUTS® trademark registration(s) and related marks.

An interesting trademark dispute therefore presents itself to us for analysis.

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This is not how trademarks work

October 10, 2018 / / Comments Off on This is not how trademarks work

Colin Kaepernick’s “Intent to Use” trademark filing explained

ESPN once again published another article about an athlete seeking to protect his trademark rights in the United States. I have written about this topic before. More than a few times – to be precise. I still maintain that these “athlete trademarks” are getting absurd. Colin Kaepernick, however, is a substantially different athlete in terms of branding and awareness and overall newsworthiness. Kaepernick’s company filed a series of new applications to register a particular mark on October 5, 2018 with the United States Patent and Trademark Office. This provides another good opportunity for an analysis of what trademarks are and how trademark registrations work.

More importantly, it allows for continued discussion on how “trademark” and “trademark registration” are entirely different things. Plus, another reminder of the fact that there is no such thing as a “trademark application.”

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

April 4, 2018 / / Comments Off on 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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