On May 29, 2020, Netflix released a new comedy television series starring Steve Carrell titled “Space Force.” It is a workplace comedy from one of the creators of “The Office” that focuses on the presumed sixth branch of the United States military. This concept is directly derived from the United States’ Space Force that was announced by President Trump and authorized by Congress on December 20, 2019.
By any standard, the existence of both things is somewhat of
a farce. Making things even stranger is that no one seems to understand how
names and titles and trademarks work, which led to a series of articles this
week about the purported trademark rights to SPACE FORCE being lost by the
United States government. This premise is ridiculous and this article will
attempt to explain why this is a non-story.
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,
Trump is unlikely to have acquired permission to use this
clip from Disney,
including any right to create or share derivative works, 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.
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.
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. 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. 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. 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.” 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.
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.
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.
Last weekend, The Hunger Games: Mockingjay – Part 2 made over $100 million at the box office. The movie’s success is largely due to the strength of Jennifer Lawrence and the popularity of the books. Enough digital ink has been spilled discussing the movie as a dystopian political outlook for young adult audiences. Instead, here we repurpose the world of Panem as if it adopted the intellectual property laws currently in the United States.
Accordingly, under that hypothetical, what trademark and publicity rights does Katniss Everdeen have? Did the rebels and/or the nation-state of Panem violate or infringe any of these rights by exploiting her image as the “Mockingjay”?
[mild spoilers ahead, proceed with caution if you have not seen the movie]
[originally published on October 12, 2015 at www.law-dlc.com]
Trademarks are everywhere. Everything from a well-known slogan by a shoe company, to a famous organizational logo, to the signature color scheme or uniform of a performer can be considered as a trademark. Trademarks can take many different shapes and forms, each of which may be protected by U.S. law. The key is what can (or should be) protected and what may be enforced as the intellectual property rights of an individual or entity. U.S. trademark law allows for a multitude of ways to express yourself or identify your product to the consuming public. In fact, the law encourages this!
[originally published September 25, 2015 on www.law-dlc.com]
Have you ever watched a movie and wondered whether something cool in it could be patented? Many movies, however, are set outside the United States. Some are set in fantasy lands that would not recognize our system of laws. Yet – what if? What if, for example, the mythical country of Florin happened to adopt the laws of the United States as it applies to intellectual property rights? Yes, Florin. The homeland of Buttercup. You know – The Princess Bride. What if the cowardly Prince Humperdinck recognized and enforced patent, trademark, copyright and trade secret concepts as seen in that movie? Inconceivable, you say? But what would that look like and what would be some examples?
[If you have never seen The Princess Bride, kindly stop reading and go watch it. Now. I do not think I can be friends with anyone who does not like this movie.]
I will skip the kissing parts and go right into the action and adventure. Pirates are cool, right? To the land of Florin we go!