Owners, Borrowers & Thieves 2.0 : Husch Blackwell Sanders LLP : First Amendment, Commercial Speech

The new year opened with an intriguing study by two American University professors that concludes that many online videos which use copyrighted materials do so in ways that are eligible for fair use consideration under copyright law.  These are, of course, the very same uses of copyrighted material under siege by a variety of "anti-piracy" measures online.

The study--Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video--identifies nine kinds of uses of copyrighted material that are eligible for fair use consideration. They range from the incidental (such as a video maker’s family singing “Happy Birthday”) to parody (a Christian takeoff on the song “Baby Got Back”) to pastiche and collage (finger-dancing to “Harder, Better, Faster, Stronger”).

Better yet, the study contains links to dozens and dozens of videos--many of which are brilliant and hilarious--that demonstrate these various kinds of uses. WARNING: For those of you who've lost an hour or so of office time to the lure of the Sirens of the Island of the YouTube Concert Videos, prepare to land on Calypso's Island of Transformative Use, where you will be tempted by the vicious satire of George Bush Don't Like Black People and the astounding tour de force of History of Dance and the marvelously clever Ten Things I Hate About Commandments. And many, many more.

Kudos to the study's authors, Pat Aufderheide and Peter Jaszi, for shedding some coherent light on this vital new realm of fair use.  Pat Aufderheide is a professor in American University’s School of Communication and the director of the school's Center for Social Media.  Peter Jaszi is a professor in American University’s Washington College of Law and co-director of the law school’s Program on Information Justice and Intellectual Property.

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks

William Patry, the Mack Daddy of Copyright, has a fascinating post entitled, "The Effect of Judicial Ideology in IP Cases," on his eponymous blog.  (Ah, I finally found a way to use "eponymous.")

Patry discusses an empirical study by Professors Matthew Sag, Tonja Jacobi and Maxim Stych, posted here on the Social Science Research Network, in which the authors present the results of their examination of the past 22 years of Supreme Court decisions in the fields of patents, copyrights and trademarks.  According to the abstract of their article, their analysis shows "that ideology is a significant determinant of cases involving intellectual property rights."  Even more interesting, ideology seemed to dictate different results depending upon the type of intellectual property involved, e.g., the Justices were more likely to vote against a trademark owner but for a copyright owner.

On a less scholarly basis I have noticed similar -- and similarly unexpected -- ideological divides in lower courts in the field of right of publicity.  Given that the right of publicity is a property right, judges from which end of the political spectrum are more likely to protect it?  Wrong.

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks

The Eighth Circuit handed down its much awaited fantasy baseball decision in CBC Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., the appeal of the district court's summary judgment in favor of CBC.  CBC had brought a declaratory judgment case in St. Louis to establish its right to use -- without license or compensation -- the names and statistical information of real major league baseball players in its fantasy baseball products.  The players had counterclaimed, maintaining that CBC's fantasy baseball products violated their rights of publicity.

Although the Eighth Circuit concluded that use by CBC of the names and statistics of the players in its commercial fantasy baseball operations satisfied all three elements of the Missouri tort -- namely, (1) use of the player's name as a symbol of his identify, (2) without his consent, and (3) with the intent to obtain a commercial advantage -- it held that this use was nevertheless a "fair use" under the First Amendment.

But of more interest to me -- and to those concerned that right-of-publicity has become the tort of choice for celebrities seeking to avoid the First Amendment barriers to libel and privacy claims -- is the Eighth Circuit's treatment of the controversial  First Amendment test created by the Missouri Supreme Court in the Tony Twist case, which is also the same case that articulated the three elements of the tort claim set forth in the preceding paragraph.

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks

While death has ended James Brown's reign as Hardest Working Man in Show Business, his post-mortem litigation may yet snatch from Elvis the title Hardest Work Corpse in Lawsuits.  His latest appearance was in the Illinois Appellate Court, where he was the headliner in the appeal of a right-of-publicity claim against a company that licenses copyrights for stock photographs.  The case presents an intriguing and somewhat confusing fair-use struggle along the border between right of publicity and copyright law.

The basic facts are straightforward: The main defendant, Corbis Corp., licenses the use of stock photographs and images. Its customers range from newspapers and magazines to advertising agencies.  It had, for example, given Rolling Stone Magazine a license to use certain photographs of James Brown in a profile the magazine published under the title Being James Brown.

So far, so good.  Entirely proper, no cause of action.

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks

"The law is a seamless web."  Whether Oliver Wendel Holmes or Frederick Maitland first made that enigmatic claim, one way to put it to the test is to set aside the familiar cubbyholes we use to sort out legal issues -- antitrust, copyright, UCC, trusts & estates -- and instead pick a theme.  My fellow blogger Geoff Gerber has picked comic books as his theme.  Study the law of comic books, O Spidey, and you may indeed find yourself in a seamless web.  My current seamless -- or perhaps seamy -- web is the realm of dirty words and dirty pictures, a/k/a, "Censorship & the First Amendment," a course I teach at Washington University School of Law.

But if you'd prefer to earn a Juris Doctor Dre or would rather be sippin' on Gin & Jurisprudence, try the Law of Hip Hop, which traces its origins to the Mack Daddy of "fair use" cases, Campbell v. Acuff-Rose. How can you not love a U.S. Supreme Court decision that quotes these timeless lyrics from Luther "Luke" Campbell's version of the Roy Orbison classic, "Pretty Woman":

Big hairy woman, you need to shave that stuff
Big hairy woman, you know I bet it's tough
Big hairy woman, all that hair it ain't legit
Cause you look like "Cousin It"
Big hairy woman

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks

While all versions of "fair use" share some of the same 1st Amendment genetic code, the doctrine has one meaning in copyright law, other meanings under trademark law (such as 15 U.S.C. Sections 1115(b)(4) & 1125(c)(4)), and yet other meanings in the field of right of publicity. 

But for those of us who toil in the journalism vineyards -- where the purest and oldest of those DNA strands are found -- the fair use defense actually travels, at least in invasion of privacy lawsuits, under the alias of "newsworthiness."  The scope of that doctrine took center stage in Alvarado v. KOB-TV, a recent 10th Circuit decision affirming a district court's dismissal of a lawsuit filed by two undercover cops against an Albuquerque TV station that broadcast their identities. The  plaintiffs were Albuquerque cops who were named on the news show as suspects in a sexual assault case; in addition, the station aired video footage of each man opening the door to his home after the reporter rang the doorbell.  The cops were eventually cleared of the sexual assault charge, although they continued to receive threats as a result of the broadcast. There was no defamation claim because the station's broadcast was entirely true: they had indeed been charged with a crime.  So instead, they (and their wives) sued the station for invasion of privacy and intentional infliction of emotional distress.

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks

The recent explosion of media coverage over the California arrival of David Beckham got me thinking about the use -- or more precisely, the "fair use" -- of his name in the title of the motion picture Bend It Like Beckham.  When I first heard that title back at the time of the movie's release in 2002, I had only the vaguest knowledge of David Beckham and made no connection between him and the rest of the title.  Indeed, to this ignorant American the title had mysterious and vaguely erotic connotations, as if it referred to a position in the Kama Sutra.  But the rest of the world, of course, knew immediately that the Beckham in the title was THE most famous athlete on the planet and that the title itself referred to Beckham's amazing skill at scoring on free kicks by “bending" (curving) the ball, which makes it veer out of the goalie's reach.

Knowing Hollywood, we can assume that all of the necessary permissions were signed in triplicate long before the first scene was shot.  But what if Beckham had refused to give permission?  Could you still include the name of the most famous athlete on the planet in the title of your motion picture?  Could you use for free a name that had a commercial endorsement value worth tens of millions of dollars?

Subscribe to Michael Kahn

• Print
• Comments (1)
• Trackbacks

I am falling in love.  The object of my affection is the prose of a judge from the Seventh Circuit named Terrence T. Evans who seems equally at home in the worlds of jurisprudence, hip hop and baseball.  My infatuation began with Judge Evans' opinion in United States v. Murphy, 406 F.3d 857 (7th Cir. 2005), an otherwise run-of-the-mill drug case in which he famously paused to drop a footnote correcting the court reporter's misspelling of the term "ho":

The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch "hoe." A "hoe," of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden's response. We have taken the liberty of changing "hoe" to "ho," a staple of rap music vernacular as, for example, when Ludacris raps "You doin' ho activities with ho tendencies."

If that footnote doesn't make you swoon, check out his latest opinion, Central Manufacturing, Inc. v. George Brett, et al. -- a trademark infringement case in which the lead defendant is indeed THAT George Brett, now enshrined in the Baseball Hall of Fame.  The Gods of Serendipity sent the appeal to a panel that included Judge Evans, and the resulting opinion will surely please them.

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks

Eric Goldman's Technology & Marketing Law Blog offers an excellent analysis of the latest district court decision to weigh in on the question of whether the purchase of a Google keyword ad that uses a competitor's trademark or the use of that trademark in the defendant's metatags constitutes a trademark use "in commerce" under the Lanham Act (and the equivalent state trademark laws).  Better yet, Eric saves me from having to update Pete's update of my original post on the topic. This latest decision, FragranceNet.com, Inc. v. FragranceX.com, Inc., (E.D.N.Y. June 12, 2007), is the fourth one in a Second Circuit jurisdiction holding that buying a keyword ads is not a trademark use in commerce.  The lesson for would-be trademark plaintiffs: sue outside the Second Circuit.

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks

At some point early on in a copyright lawyer's career (or at least in this copyright lawyer's career), usually while you are seated in a chain restaurant listening to the waiters sing an unfamiliar birthday song to the beaming fellow at the next table, that mental lightbulb blinks on as you realize, "They aren't singing the Happy Birthday song because it's still covered by copyright, this is a commercial establishment, and they'd have to pay royalties."  And then you connect the dots to the "fair use" doctrine, realizing you can still sing it at home or at a friend's house without fear of a visit from an ASCAP goon.

Take that thought over to the realm of Karaoke, which is the subject of a fascinating recent decision by the Sixth Circuit in Zomba Enterprises, Inc. v. Panorama Records, Inc.  As Circuit Judge Karen Nelson Moore astutely observes in her opening paragraph:

Countless people have lined up at various venues to perform their favorite songs with, and in front of, their friends. But few participants (with the possible exception of IP lawyers) ever stop to consider the intellectual property regime governing karaoke.

While the decision offers important insights on various copyright topics, including calculation of statutory damages, the "fair use" discussion will, if nothing else, make you admire the moxie of the defendant's attorneys -- or at least make you sympathize with their plight.

Subscribe to Michael Kahn

• Print
• Comments
• Trackbacks