Generic Fair Use

... where pop culture meets intellectual property law

Year: 2020

Space Force v. “Space Force” – a trademark kerfuffle

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.

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“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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Bait and Switch Advertising in 2020: Is Grubhub violating the Lanham Act?

Even in the midst of a pandemic and an unofficial national lockdown, people still have to eat. With outings to the local restaurant and trips to the grocery store being potentially risky, food delivery services have become an essential part of American life in 2020. For large-scale service providers like Grubhub, it has been a relative goldmine for business.

But is Grubhub scamming us all? On May 15, 2020, BuzzFeed reported that even if you seek to bypass Grubhub service fees by calling restaurants directly, you may have been fooled by a bait-and-switch phone number. These restaurants are still paying Grubhub for extra fees.

How is this legal? More specifically, is this a violation of the Lanham Act for false advertising or customer confusion and deception?

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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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Prince spooks YouTube over Copyright Infringement (again)

… and your own concert video recordings on YouTube could be infringing, too

Prince has been gone for nearly four years. But his presence still looms large over copyright law. Even in death, Prince’s estate continues to keep a watchful eye over potential infringers of his musical works.[1] The latest dispute is a potentially haunting restriction of a popular feature on YouTube: people posting video clips of live performances. On January 6, 2020, the federal district court in Massachusetts determined that Prince’s estate has the sole right to distribute video clips of his live performances and that uploading certain song clips to a YouTube channel may even constitute copyright infringement.[2]

This case presents a multitude of legal issues to assess. Additionally, this ruling leaves a potential to a technology-based philosophical conundrum for future copyright cases as they intersect with YouTube style sites. I have a YouTube channel. On this channel I have posted covers of songs that I play on guitar. My videos are nothing fancy, but this recent case and others like it have determined that these videos can actually be infringing works. This article will try to address these legal landmines while exploring any possibility for copyright law as it exists today to be reconciled with how these personal camera-phone videos are treated by the law.

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