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.
April 20, 2017
In a world of fake news, clickbait, and alternative facts, there is a bit of comfort in knowing at least one undeniable fact. Donald J. Trump is enthusiastic about stamping the TRUMP name on most any goods or services and reaping the benefits of the ancillary trademark rights. He first sought trademark registration for a Trump-branded product in 1985 and has since sought to register in excess of 300 other trademarks with the United States Patent and Trademark Office, including the now ubiquitous MAKE AMERICA GREAT AGAIN® mark, which was registered on August 16, 2016. While he often files applications through his various corporate entities, the fact remains: Donald Trump loves him some trademark rights.
This may elicit a few questions though. First, can a sitting POTUS own trademark rights? Also, what about other intellectual property rights: patents, copyrights, trade secrets? Can a U.S. President acquire, assert, enforce, or use with impunity certain types of intellectual property?
I shall do my best to answer these, though I will try to avoid addressing in detail the emoluments clause elephant in the room. For now.
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.
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?
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!
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. 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?
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. 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…
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.
[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? 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.