Generic Fair Use

... where pop culture meets intellectual property law

Tag: movie references

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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“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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