"Blurred Lines" is clear infringement

Am I the only one in the world who thinks the Blurred Lines judgment is right? From the Internet, it sure seems that way.

Robin Thicke and Pharrell Williams broke into jail here. From a litigator's perspective I have no hesitation in saying they are reaping what they sowed. "Blurred Lines" ended up in court when Pharrell and Thicke sued the estate of Marvin Gaye for a declaratory judgment, which is where you ask a judge to say "this thing you claim isn't true". And from a copyright lawyer's perspective I say this is a judgment that shows you can create a derivative work of something without actually incorporating that work.

And that principle is nothing new.

Jimi Hendrix merchandise sales shows two risks all creators face when basing characters on real people

Yes, I'll admit it, that title is a horrible and tortured pun. You should never have to experience anything like it again. (Okay, I'll stop.) But one seller of Jimi Hendrix merchandise had an experience in Washington State that teaches two valuable lessons to creators of content using the name, image, or likeness of real people.

(Okay, I promise, I'll really stop now.)

Experience Hendrix is one of two companies formed by the estate of Jimi Hendrix to exploit the rights to his name, image, and likeness through a series of trademarks the company has registered on certain images of Hendrix, his name, and his signature. They use these marks for basically every Jimi Hendrix product you've ever seen: their business is prolific and quite profitable. But of course as with all famous brands Experience Hendrix isn't the only entity trying to profit from Jimi Hendrix. Andrew Pitsicalis owns or has licenses to several works of art either created by Hendrix or showing him in them, and through various websites (including HendrixLicensing.com) he would sell copies of these works of art, onto which he had placed Hendrix's name, signature, and/or headshot.

Experience Hendrix sued Pitiscalis for state and federal trademark infringement, and Pitsicalis countersued seeking a declaration that Washington's right of publicity statute (which gives Experience Hendrix the right to be the only one to benefit from Hendrix's right of publicity even after death) was unconstitutional. At trial the judge held that the Washington right of publicity statute was unconstitutional. Each side appealed to the Ninth Circuit Court of Appeals.

Harlequin plaintiffs bring new allegations, improve their case

[NOTE TO READERS: It's been a while since I've posted. Thanks for coming back.]

On November 2, 2012, the authors(*) in the Harlequin class action upped their game against Harlequin. If they're wrong, they will lose their class certification request. But if they win, they will find themselves making a point that will have repercussions far beyond just e-publishing and authors.

A checklist of 5 things creators could do at the beginning of each month

I like to set various habits at the beginning of the month to get myself in the practice of checking things that bear checking on a fairly frequent basis. If you're a creator, especially an author, here's 5 things that might help you in your work as well as in protecting your work.

A fresh analogy for file-sharing: the tomato

Sometimes a cigar is just a cigar, but sometimes a tomato is a piece of music. Did that make any sense? After reading the article linked below, it just might. And even though I think the analogy doesn't work perfectly, it leads to some very interesting perspectives on digital downloads and content creation.

The instructive comparison in the article is this: people say that digital content is a totally new type of thing because it can be reproduced forever without depriving the original owner of the original item. (The technical name for this type of copying is "lossless".) But that's not true. There's another type of thing that can be copied forever in a lossless fashion.

Why is it okay for you to set your own price but not for Apple or a publisher?

Setting your own price for your books seems like the most logical thing in the world. The $0.99 and $2.99 book price points are widely-used by authors to make money, and the free promotion days are like gold. But the Department of Justice has sued Apple and the e-book publishers for making this possible.

Why are these companies being charged with a criminal offence for doing something that thousands of authors now do every day?

It's not okay just because it's free: three myths (and two truths) about fair use

[Note: this is part 4 of a 4-part series on fair use.]

The last portion of the fair use test, the effect on the original market for the work, is one of the most commonly-misunderstood elements of copyright law.

The test itself seems like it should be fairly straightforward but in fact it's not. The relevant text, "the effect of the use upon the potential market for or value of the copyrighted work", looks like it only addresses the specific use made in the specific context. But that's not what courts will actually look for: they will ask both whether the specific use that you're making of someone else's work is going to affect the potential market for or value of the work, but also what would happen if everyone started doing it.

That's right, judges are just like your mom.

Correcting two common mistakes about how much fair use is too much

[Note: This is part 3 of a 4-part series on fair use.]

Plagiarism makes the news all the time, and rightly so. When an author borrows from another author or a musician from another musician, this feels wrong if it happens without permission and it's a ripoff, but okay if it leads to something fresh and new. How can a creator know how much is too much to take?

I've previously addressed the first two parts of the fair use test: looking at whether the use is transformational and looking at the nature of the original work. The third element of the test requires you to consider the quantity and value of the portions of the original material that you're using in your new work.

The best way to explore what this means is to correct two commonly-made mistakes about this part of the test:

Two points on the nature of the original work and how they affect fair use

[NOTE: This is part 2 of a 4-part series on fair use.]

Determining the nature of the original work is the second element of the fair use test. It's a bit more straightforward than the transformational use test:

1. What kind of work is the original? Is it fiction, which has a creative element to it? Or non-fiction but containing lots of analysis? Or is it more like a phone book or a database? The less creativity or analysis that went into the work, the less likely a court would be to find infringement. It's difficult to infringe the copyright in a telephone listing.
2. Was the original work published? If it was unpublished then it will get a bit more protection, because it didn't have a chance to find its own market.

Transformational use: more than meets the eye?

[NOTE: This is part 1 of a 4-part series on fair use]

Other people have good ideas. Sometimes so good that you want to build on them yourself. That can get you in trouble, or get you a lot of money. It all depends on how you do it.

I've previously written about idea theft, and will return to the topic again. Fair use is in many ways the mirror image of idea theft: it's when you deliberately take someone else's work and use it as a basis for yours. It's permitted, but only under certain circumstances. The first thing to check is whether your proposed use is transformational.

The text of the statute is actually pretty short: step one of the fair use analysis requires you to determine "the purpose and character of the use, including whether such use is of a transformational nature or is for nonprofit educational purposes". But short doesn't necessarily mean easy to understand. I'll unpack it.

Fair use and unfair theft: how can a creator understand these rules?

It is a truth universally acknowledged that a single lawyer in possession of a great tort claim must be in want of a life.

If you've ever read a book in your life, you should recognize that statement as a riff on the first line of Jane Austen's "Pride and Prejudice". Am I allowed to use Jane Austen's work as a springboard for my own? Answering that question requires me to spend the next few posts (subject to interruptions by more newsworthy events) to explain one of the most commonly-invoked but least-understood aspects of copyright law: fair use.

In order to understand fair use, you need a quick overview of how copyright comes into existence in the first place:

Is Amazon a predator or prey? New developments in e-books litigation

It may be Shark Week on the Discovery Channel, but in the Apple e-books litigation at least one person is alleging that Amazon might be the biggest predator in the water. But unfortunately for him and fortunately for readers everywhere, he's wrong.

For those of you not keeping score at home: Apple and several major book publishers are in litigation with the FTC over price fixing to raise the price of e-books. At issue is something called a "hub and spoke" conspiracy. The FTC claims that Apple offered the e-book publishers the right to have agency pricing (where the publishers set the price and Apple just acts as an agent rather than a reseller), and the publishers agreed they would pull their books from Amazon. The "hub-and-spoke" name comes from the fact that the various spokes (the publishers) need the hub (Apple) to give effect to their conspiracy. I've previously written about the public comments on a settlement the FTC wants to bring for some of the publishers. Now the court has to decide whether to accept the settlement.

Quick thoughts on the Apple-Publishers public comments and proposed settlement

I've been following this case with some interest, in part because the US filed its case the morning that I was scheduled to teach the Book Publishing Law class in my Entertainment Law course - it was one of those days that you take the slides you've prepared and throw them aside for the last 15 minutes of class - and in part because I was an antitrust litigator in a previous life. But also because, if you're interested in books and publishing or really any part of the entertainment industry, this litigation is huge.

Right before filing, the DOJ made it clear that it had reached a settlement agreement with 3 defendants: Hachette, HarperCollins, and Simon & Schuster. But they filed the lawsuit against them anyway. You might wonder why they would do this: it's to make sure the settlement agreement has the power of a court judgment. This way if the publishers break the settlement the DOJ doesn't have to sue them: they already have a judgment, so they can just go to the judge and get contempt of court proceedings. Much quicker and much cheaper.

Under US law, where the government wants to settle antitrust class actions it needs to solicit comments from the public to make sure that it has considered the public interest before acting. Today it publicized all of the 868 comments it received and response to them.

I've read the response (link below) and skimmed a selection of the comments. Here's my (admittedly not very orderly) thoughts.