Generic Fair Use

... where pop culture meets intellectual property law

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Hey, Stop Using My Song For Your Campaign!

Can musicians and artists legally demand that politicians not use their works?

Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.[1]

Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:

Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
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Lady Gaga is not famous – according to the Trademark Office

Lady Gaga is an American recording artist.[1] She is a singer, a songwriter, and a performer. She recently won a Golden Globe® for her work on the American Horror Story television show. She also was nominated for an Oscar® in 2016.[2] As of 2016, she has sold over 27 million albums worldwide. She also owns registrations for her “Lady Gaga” stage name.[3] I feel confident in stating that Lady Gaga is famous.

Yet in an opinion dated March 30, 2016,[4] the Trademark Trial and Appeal Board determined that “the evidence in the record does not rise to the level needed to show that LADY GAGA has achieved true fame among consumers…”[5] Apparently, not even Lady Gaga’s trademarks are commercially recognizable enough to be deemed legally famous in certain areas.

If LADY GAGA is not famous, then how does one reach the level of “fame” in the context of trademarks? This appears to be an absurdly high standard of proof. How do we explain a legal opinion that seems so entirely disconnected from reality?

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Stairway to Infringement? Led Zeppelin facing copyright claims

On May 31, 2014, the estate of Randy Craig Wolfe filed a lawsuit in the Eastern District of Pennsylvania against James Patrick Page, Robert Anthony Plant, and John Paul Jones, among others.[1] The primary cause of action is copyright infringement. There does not appear to be anything special about such a lawsuit until you realize that the Defendants are famous musicians that performed under the name “Led Zeppelin” and the “among others” includes Warner Music Group. The alleged basis for copyright infringement? Stairway to Heaven. Yes, the 1971 song that continues to be a staple at every middle school dance. Suddenly this lawsuit seems like kind of a big deal.

How is such an iconic song subject to a copyright infringement lawsuit 45 years after its initial release? How was this suit not dismissed as frivolous right away? Does the judge not know about this little thing called a ‘statute of limitations’? This all seems highly unfair, right?

Well, a jury gets to decide all of these issues as early as next month. On April 8, 2016, the district court judge denied the relevant parts of Led Zeppelin’s Motion for Summary Judgment and the lawsuit is set to proceed to trial.[2] In the meantime, a quick overview of this case and how 1970s copyright laws are still relevant today.

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When Keeping it Real Goes Wrong? The Supreme Court declines to hear the “Madden NFL” appeal.

In January 2015, in Davis v. Electronic Arts Inc., the United States Court of Appeals for the Ninth Circuit held that the makers of the extremely popular Madden NFL video game series could not overcome former players’ claims for violation of publicity rights by claiming First Amendment protections.[1] Electronic Arts Inc., the Defendant and the maker of the game, eventually appealed to the United States Supreme Court on grounds that they are essentially being penalized for making a game that is “too realistic” and life-like.[2] An emboldened use of the “we are just too good at our jobs” defense, perhaps?

On Monday, March 21, 2016, without any further commentary, the Supreme Court denied EA Sports’ petition to hear the appeal. Procedurally, this is called a denial of certiorari, and it means that the Ninth Circuit’s verdict remains the final judicial determination on the issues presented. Colloquially speaking, and while maintaining the proper sports metaphors, this means the Supreme Court punted.

But what really is the issue here? Where do publicity rights end and the First Amendment begins? Why does EA Sports contend that it has no obligation to pay retired professional athletes for the use of their images and likeness rights?

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“Easter” is a registered trademark. Cease-and-desist all uses?

Today is Good Friday, the legal and Christian religious holiday of sorts commemorating the crucifixion of Jesus Christ. Sunday is Easter, celebrating the resurrection, concluding Holy Week, and also culminating in the end of the religious period known as Lent. These events have been recognized throughout the Christian and secular world for over 2,000 years.

Easter is also big business. From “Easter eggs,” to chocolate bunnies, to special pastel-colored clothing for Sunday church services, the holiday has been commercialized. Not surprisingly, there are multiple registered trademarks that are Easter-themed. Here are just a few:

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In the poker game of life, the USPTO is the rake.

No new card games are patent-eligible without the invention of a new deck

On October 26, 2010, two enterprising individuals from New Jersey filed a patent application with the United States Patent and Trademark Office for a “Blackjack Variation.”[1] The Smiths sought to acquire patent rights to a new casino game they called “Pacific Rim Blackjack.” It appears that these inventors created a card game variant that merges the concepts of blackjack with Baccarat. The application claims that “casinos are in constant need of new games of chance to retain and attract patrons.” Additionally, the patent application asserts that existing games of chance such as blackjack, Three-Card Poker™, Baccarat, and Pai Gow are “popular” but “suffer from drawbacks.”

Due to the applicants’ unprovoked attack on the greatness that is Pai Gow poker, the USPTO rejected the patent application in whole. Well, okay, the patent examiner and later the Patent Trial and Appeal Board (PTAB) actually rejected the application on grounds that the alleged invention is “abstract” and therefore not patent eligible subject matter. The inventors appealed this decision and on March 10, 2016, the Federal Circuit affirmed.[2] Though the interesting part of the decision is not the rejection of the application itself – it was the Federal Circuit’s rationale and hints at the types of card games that might actually be patentable.

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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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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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Has the OREO trademark become generic?

Generic trademarks are no joke. Earlier this week, the Trademark Trial and Appeal Board ruled that the trademark BOOKING.COM was generic for travel agency and hotel reservation services. Legally speaking, if a mark is generic, it no longer serves the purpose of a trademark and cannot be protected or enforced against third party uses. According to the TTAB’s ruling, booking.com operates to essentially identify the product itself and does not operate as a source-identifier to customers. Therefore no one is entitled to exclusive use of this term in commerce.

This news triggered a few things in my mind. Recently, a friend of mine and I had lunch at a nice restaurant in the Houston area. This restaurant offered a particular dessert offering – a dressed-up, fancy Oreo cookie.[1] Now, being a trademark nerd, I noticed the lack of any trademark designation on the menu listing. No ™. No ®. And no disclaimer in the fine print suggesting that “Oreo” is a trademark owned by someone else and licensed to this restaurant. Nothing of the sort. My friend and I joked about this for a while until it occurred to me that I may have stumbled upon something interesting:

Has OREO become a generic term that no longer functions as a trademark?

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Is Donald Trump a cybersquatter?

Donald Trump is an expert level troll. He is in the midst of the most unconventional Presidential campaign of the Internet era. Political scientists still cannot categorize or describe him as a candidate. Meanwhile, Trump continues to hoard the media’s attention for everything he does. Most recently, Trump gained attention when visitors to JebBush.com were instead being re-directed to Trump’s own campaign website.

It seems that as early as December 8, 2015, someone purchased the domain for JebBush.com and, to the chagrin of the Bush campaign, sent visitors and Bush supporters to his rival’s official website – www.donaldjtrump.com. For the record, JebBush.com is not the official website of the Bush campaign. Additionally, Trump and his campaign team deny any direct involvement in the prank, though the current owner of the JebBush.com domain is remaining silent for now.

Just for fun, however, let us assume that Donald Trump is responsible for the domain name purchase and the re-direct to his own campaign site. Is this legal? Does this make Trump a no-good cybersquatter and trademark infringer? Let’s explore!

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